{ "id": 11712332, "name": "STATE OF NORTH CAROLINA v. GEORGE McCALL RICK", "name_abbreviation": "State v. Rick", "decision_date": "1997-07-01", "docket_number": "No. COA96-876", "first_page": "612", "last_page": "619", "citations": [ { "type": "official", "cite": "126 N.C. App. 612" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "73 L. Ed. 2d 1378", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "458 U.S. 116", "category": "reporters:federal", "reporter": "U.S.", "year": 1982, "opinion_index": 0 }, { "cite": "72 L. Ed. 2d 470", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "456 U.S. 946", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6312710, 6311656, 6310537, 6311242, 6311884, 6312432, 6311025, 6310258, 6310006, 6312951, 6311450, 6313181, 6310783 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/456/0946-11", "/us/456/0946-08", "/us/456/0946-03", "/us/456/0946-06", "/us/456/0946-09", "/us/456/0946-10", "/us/456/0946-05", "/us/456/0946-02", "/us/456/0946-01", "/us/456/0946-12", "/us/456/0946-07", "/us/456/0946-13", "/us/456/0946-04" ] }, { "cite": "669 F.2d 180", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1161716 ], "opinion_index": 0, "case_paths": [ "/f2d/669/0180-01" ] }, { "cite": "268 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564808 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0731-01" ] }, { "cite": "309 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "pin_cites": [ { "page": "777-78" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "354 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "343", "parenthetical": "quoting State v. Robbins, 309 N.C. 771, 777-78, 309 S.E.2d 188, 192 (1983)" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169739 ], "year": 1987, "pin_cites": [ { "page": "207", "parenthetical": "quoting State v. Robbins, 309 N.C. 771, 777-78, 309 S.E.2d 188, 192 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0200-01" ] }, { "cite": "254 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568581 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0247-01" ] }, { "cite": "264 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550279 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0574-01" ] }, { "cite": "128 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "463 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "186" } ], "opinion_index": 0 }, { "cite": "342 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795987 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0091-01" ] }, { "cite": "444 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "114 N.C. App. 820", "category": "reporters:state", "reporter": "N.C. App.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 782, "char_count": 16496, "ocr_confidence": 0.739, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7487459693596036 }, "sha256": "77633222b976fb788235717a1d7e7d8e5d5407f0e7e0dfc778afd613420e6672", "simhash": "1:f92e606b660ca9ba", "word_count": 2817 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE McCALL RICK" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDefendant George McCall Rick was indicted for first degree murder, second degree burglary, and second degree rape on 14 September 1992. At the 15 March 1993 criminal session of Gaston County Superior Court, the jury found defendant guilty of second degree murder, second degree burglary, and attempted second degree rape. Defendant appealed to this Court, which, in an unpublished opinion filed 17 May 1994, reversed the burglary and attempted rape convictions and vacated the second degree murder conviction on the basis of insufficient proof that any crime had been committed in North Carolina. State v. Rick, 114 N.C. App. 820, 444 S.E.2d 495 (1994). The North Carolina Supreme Court affirmed this Court with regard to its reversal of the second degree burglary and attempted second degree rape convictions. However, the Supreme Court reversed this Court with respect to the second degree murder conviction and remanded the case to Gaston County Superior Court for a new trial on that charge. State v. Rick, 342 N.C. 91, 463 S.E.2d 182 (1995).\nUpon retrial, the following facts were presented. On 25 April 1992, John Latham was fishing at the Mill Creek Bridge in South Carolina, when he saw a body floating in the river. Mill Creek Bridge is approximately two (2) miles from the North Carolina state line. Rescuers recovered the body using a special metal basket. The body had been tied to a rock and a cinder block with a red ligature. The officials theorized that the body had been dumped over the side of the bridge and had traveled about twenty (20) feet. The body was transported to the morgue where additional photographs were taken. One of the photographs showed that the victim\u2019s right ear lobe contained an earring which was later used for identification purposes. The victim was Erma Carol Rose.\nGay Bean, the sister of the victim, testified that after church on 26 April 1992, she and her mother, Etta Hicks, went to the victim\u2019s house to check on her. Bean and Hicks noticed that the victim\u2019s mail was still in the mailbox, which was unusual. Further, they noted that the victim\u2019s car was not there. They then discovered that the back door screen had been cut and the glass had been broken out of the door. They went into the kitchen and saw broken glass. A styrofoam cup, a paper plate and a spoon were on the floor. One of the kitchen sinks was nearly overflowing from dripping water. This was also unusual, since the victim was a very neat housekeeper. In the bedroom, the linen had been removed from the bed, and clothes were scattered over the dresser. In the living room, a drink bottle was propped behind a cushion on the couch. Bean called the police and, the next day, filed a missing person report. At trial, Bean testified that the victim\u2019s car was a dark blue Mustang with a light blue pinstripe and that she had noticed a shotgun missing from the victim\u2019s bedroom.\nJoyce Rick, defendant\u2019s sister-in-law, testified at trial that on 21 April 1992, she lived in a trailer park in Gastonia, North Carolina. Late that morning, Rick heard a car and saw defendant drive up to her trailer in a blue Mustang. Defendant then began knocking on the front door of Rick\u2019s trailer, demanding to be let in so that he could talk to her. Rick did not answer since she did not want defendant to know that she was there alone. Eventually, defendant turned and went back to the blue Mustang. On the way, he laid something on the hood of Rick\u2019s car, which she later discovered to be a small Bible. In it, defendant had written that he would forever love Rick and that he intended to end his life that night because he had done something bad. Rick did not see anyone else in the Mustang.\nAbout thirty (30) minutes later, defendant again knocked on Rick\u2019s* front door. This time, he did not have the Mustang. Instead, defendant was on foot. He appeared upset and was carrying a beer bottle wrapped in a washcloth. He demanded to talk to Rick, but when she did not answer the door, he left after about five (5) minutes.\nAs Rick drove out of the mobile home park later that day, she saw the Mustang in a ditch on the main road, and a Highway Patrol officer was stopping traffic to ask about the vehicle. Rick told the officer that she did not know who owned the vehicle but that defendant had been driving it earlier. She stated that she noticed the Mustang was muddy. At trial, she identified the victim\u2019s Mustang as the car that defendant had been driving. She also testified that at one time, she had a relationship with defendant and that after it ended, he wrote and telephoned her several times.\nOfficer B.F. Harris of the Gaston County Police Department, who investigated the victim\u2019s home, first treated the crime as a breaking and entering and later treated it as a homicide. He processed the house for latent prints, but although several lifts were made, none were of value. At trial, he identified the items that he had found in the victim\u2019s house, as well as photographs of the outside of the house. These photographs depicted an impression in the ground on the left side of the house near the foundation and another impression in the yard near the fence in front of the house.\nWhen defendant was arrested by the Gastonia Police on 30 April 1992, he was advised of his rights and, at first, elected to waive them but later invoked his right to an attorney. Detective S.R. Small of the Mount Holly Police Department testified that defendant stated, \u201cIf I can prove that I killed that woman in South Carolina, then that warrant you have in your hand is not worth a shit.\u201d\nOfficer Robert Johnston of the Gaston County Police Department testified that he had worked the crime scene at the victim\u2019s house and that while photographing the outside, he noticed two places in the ground from which it appeared that something had been removed. One place was located along the foundation line, and the other was located along the front fence. The cinder block which was found tied to the victim appeared to be similar in size and shape to the impression near the foundation of the house, and the rock which was tied to the victim appeared to be similar in size and shape to the impression at the fence.\nTerry Anthony, a roofer, testified that he knew defendant. On the day the victim was reported missing, Anthony was working on the street where the victim lived. He testified that approximately forty-five (45) minutes after he saw the police cars at the victim\u2019s house, he saw defendant walk behind the house where Anthony was working and continue into the woods carrying a black trash bag over his shoulder. Anthony spoke to defendant, and defendant waved but did not stop to speak.\nSpecial Agent Brenda Bissette performed DNA tests on several items taken from the victim\u2019s home. Michael DeGuglielmo, a DNA expert, testified that while the results of the testing were not conclusive, defendant could not be excluded as a donor of the semen found on a pair of the victim\u2019s jeans. The victim\u2019s husband, however, was eliminated as the semen donor.\nDefendant presented no evidence at trial. The jury found that North Carolina had jurisdiction and, further, found defendant guilty of second degree murder. The trial court found as an aggravating factor that defendant had previously been convicted of crimes punishable by more than sixty (60) days confinement and imposed a life sentence. Defendant appeals.\nDefendant argues that the trial court erred in denying his motion to dismiss. We disagree.\nDefendant contends that the evidence was insufficient to show that he committed second degree murder and that there was insufficient evidence at the second trial from which the jury could reasonably infer that the victim was murdered in North Carolina. Our Supreme Court noted previously that while the evidence in the instant action is circumstantial, \u201cthis factor alone does not mean that the evidence is deficient in any respect.\u201d State v. Rick, 342 N.C. 91, 99, 463 S.E.2d 182, 186 (1995). \u201c \u2018[Circumstantial evidence is that which is indirectly applied by means of circumstances from which the existence of the principal fact may be reasonably deduced or inferred.\u2019 \u201d Id. (quoting 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence \u00a7 80 (4th ed. 1993)).\nA review of the evidence reveals that the victim was last seen alive at 11:00 p.m. while leaving work on 20 April 1992; that she went, to her home and changed into a dress and white, high-heeled shoes; that a few hours later, defendant was seen driving alone in the victim\u2019s car; that violence had taken place in the victim\u2019s home, as denoted by the broken glass, the dishes on the floor and the disarray of the bedroom; that indentations of the same dimensions as the cement block and rock used to sink the victim\u2019s body in the creek were found in the victim\u2019s backyard; that defendant indicated inside a Bible that he intended to kill himself because he had done something bad; that defendant could not be excluded as the donor of the semen found on the victim\u2019s jeans; and finally, that defendant quipped to the police that North Carolina did not have jurisdiction over a crime committed in South Carolina. In addition, the evidence indicates that defendant lived two doors away from the victim and that shortly before the victim\u2019s disappearance, she expressed fear of the \u201crapist up the street\u201d who had been watching her. From these facts, a jury could reasonably infer that defendant had committed the crime and that the crime occurred in North Carolina. Because there was sufficient evidence from which the jury could find that North Carolina had jurisdiction and that defendant committed the murder, the trial court did not err in denying defendant\u2019s motion to dismiss.\nDefendant\u2019s second argument is that the trial court erred in failing to instruct the jury on manslaughter. We find this argument to be unpersuasive.\nA second-degree murder conviction requires the presence of malice, whether express or implied. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). Malice, however, is not required for manslaughter. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980). In this action, the State made a showing of implicit malice, and no evidence of heat of passion on sudden provocation or self-defense was shown. See State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979). \u201c \u2018In order for an accused to reduce the crime of second-degree murder to voluntary manslaughter he must rely on evidence presented by the State or assume a burden to go forward with or produce some evidence of all elements of heat of passion on sudden provocation.\u2019 \u201d State v. Adams, 85 N.C. App. 200, 207, 354 S.E.2d 338, 343 (1987) (quoting State v. Robbins, 309 N.C. 771, 777-78, 309 S.E.2d 188, 192 (1983)). As the evidence could reasonably show that defendant committed the crime charged and no evidence of a lesser included offense was presented, the trial court did not err in declining to charge on the lesser included offense. Id.; see also State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980). Therefore, this argument fails.\nDefendant next argues that the trial court erred in overruling his objection to the testimony of Robert Johnston, the crime scene technician. Over defendant\u2019s objections, the trial court allowed Mr. Johnston to testify that the impressions in the dirt around the victim\u2019s house were \u201csimilar in size and shape\u201d to the cinder block and rock tied to the victim\u2019s body. The North Carolina Rules of Evidence provide that non-expert witness testimony \u201cin the form of opinions ... is limited to those opinions . . . which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C.R. Evid. 701. In this situation, Mr. Johnston\u2019s opinion was rationally based on his personal perception and was helpful to the jury for a clear understanding of the facts in issue. Accordingly, this argument is also unpersuasive.\nDefendant\u2019s final argument is that the trial court erred in denying his motion to dismiss on the ground of prior jeopardy. In State v. Rick, our Supreme Court remanded the case for a new trial on the charge of second-degree murder, because the trial court erred in instructing the jury, not because the State failed to properly present its case. 342 N.C. 91, 463 S.E.2d 182. Therefore, defendant\u2019s constitutional right to be free from double jeopardy was not violated, because a reversal for error committed by the court does not bar retrial. See United States v. Coward, 669 F.2d 180 (4th Cir.), cert. denied, 456 U.S. 946, 72 L. Ed. 2d 470, reh\u2019g denied, 458 U.S. 116, 73 L. Ed. 2d 1378 (1982).\nFor all of the foregoing reasons, we find that defendant received a fair trial, free from prejudicial error.\nNo error\nJudges GREENE and WYNN concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Valerie B. Spalding, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE McCALL RICK\nNo. COA96-876\n(Filed 1 July 1997)\n1. Homicide \u00a7\u00a7 124, 284 (NCI4th)\u2014 second-degree murder\u2014 murder within N.C. \u2014 sufficiency of evidence\nThe trial court did not err in a prosecution in which defendant was convicted of second-degree murder by denying his motion to dismiss where defendant contended that the evidence was insufficient to show that he committed second-degree murder and for the jury to infer that the victim was murdered in North Carolina where the body was recovered in a river approximately two miles from the North Carolina state line. The victim was last seen alive at 11:00 p.m. while leaving work on 20 April 1992; she went to her home and changed into a dress and white, high-heeled shoes; defendant was seen a few hours later driving alone in the victim\u2019s car; violence had taken place in the victim\u2019s home; indentations of the same dimension as the cement block and rock used to sink the victim\u2019s body in the creek were found in the victim\u2019s backyard; defendant indicated inside a Bible that he intended to kill himself because he had done something bad; defendant could not be excluded as the donor of the semen found on the victim\u2019s jeans; defendant quipped to the police that North Carolina did not have jurisdiction over a crime committed in South Carolina; defendant lived two doors from the victim; and the victim had expressed fear of \u201cthe rapist up the street\u201d who had been watching her.\nAm Jur 2d, Homicide \u00a7\u00a7 197, 425 et seq.\n2. Homicide \u00a7 361 (NCI4th)\u2014 second-degree murder \u2014 no instruction on manslaughter \u2014 no error\nThe trial court did not err by not instructing the jury on manslaughter in a prosecution which resulted in a second-degree murder conviction where the State made a showing of implicit malice and there was no evidence of heat of passion on sudden provocation or self-defense. The evidence could reasonably show that defendant committed the crime charged and no evidence of the lesser included offense was presented.\nAm Jnr 2d, Trial \u00a7\u00a7 1077 et seq.\n3. Evidence and Witnesses \u00a7 2047 (NCI4th)\u2014 second-degree murder \u2014 testimony of crime scene technician \u2014 impressions in dirt at victim\u2019s house \u2014 similar to items tied to body \u2014 admissible\nThere was no error in a prosecution which resulted in a second-degree murder conviction in the admission of the testimony of a crime scene technician that impressions in the dirt around the victim\u2019s house were similar in size and shape to the cinder block and rock tied to the victim\u2019s body when it was recovered from a river. The testimony was rationally based on the witness\u2019s personal perception and was helpful to the jury for a clear understanding of the facts in issue. N.C.G.S. \u00a7 8C-1, Rule 701.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 26 et seq., 53, 54.\n4. Constitutional Law \u00a7 231 (NCI4th)\u2014 second-degree murder \u2014 new trial following remand \u2014 not prior jeopardy\nThe trial court did not err in a prosecution which resulted in a second-degree murder conviction by denying defendant\u2019s motion to dismiss based on prior jeopardy because the case had been remanded for a new trial. A reversal for error committed by the court does not bar retrial.\nAm Jur 2d, Criminal Law \u00a7\u00a7 309 et seq.\nAppeal by defendant from judgments entered 18 March 1996 in his retrial by Judge Ronald K. Payne in Gaston County Superior Court. Heard in the Court of Appeals 1 April 1997.\nAttorney General Michael F. Easley, by Assistant Attorney General Valerie B. Spalding, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." }, "file_name": "0612-01", "first_page_order": 650, "last_page_order": 657 }