{ "id": 11238748, "name": "STATE OF NORTH CAROLINA v. MICHAEL LEONARD LUNDY and RONALD LEE EVANS, Defendants", "name_abbreviation": "State v. Lundy", "decision_date": "1999-09-21", "docket_number": "No. COA98-1257", "first_page": "13", "last_page": "24", "citations": [ { "type": "official", "cite": "135 N.C. App. 13" } ], "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": "309 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4764212 ], "year": 1998, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0763-01" ] }, { "cite": "321 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "586", "parenthetical": "quoting State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1998) (citations omitted)" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523828 ], "year": 1984, "pin_cites": [ { "page": "66", "parenthetical": "quoting State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1998) (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0063-01" ] }, { "cite": "389 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "832" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522639 ], "year": 1990, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0068-01" ] }, { "cite": "33 L. Ed. 2d 761", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "408 U.S. 939", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782720, 1782785, 1782912, 1782723, 1782762, 1782831, 1782832, 1782961, 1782833, 1782865, 1782868, 1782933, 1782941, 1782835, 1782936, 1782777, 1782813 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0939-13", "/us/408/0939-10", "/us/408/0939-06", "/us/408/0939-16", "/us/408/0939-01", "/us/408/0939-05", "/us/408/0939-02", "/us/408/0939-08", "/us/408/0939-07", "/us/408/0939-17", "/us/408/0939-14", "/us/408/0939-15", "/us/408/0939-03", "/us/408/0939-12", "/us/408/0939-04", "/us/408/0939-11", "/us/408/0939-09" ] }, { "cite": "181 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "279 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565554 ], "year": 1971, "pin_cites": [ { "page": "41-42" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0018-01" ] }, { "cite": "468 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "testimony regarding defendant's drug dealings properly admitted under Rule 404(b) to show motive where State contended that victim was killed for stealing cocaine from one of defendant's \"lieutenants\"" } ], "opinion_index": 0 }, { "cite": "343 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798779 ], "year": 1996, "pin_cites": [ { "parenthetical": "testimony regarding defendant's drug dealings properly admitted under Rule 404(b) to show motive where State contended that victim was killed for stealing cocaine from one of defendant's \"lieutenants\"" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0029-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "223 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "493" }, { "page": "361" } ], "opinion_index": 0 }, { "cite": "289 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570811 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0488-01" ] }, { "cite": "447 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "352", "parenthetical": "quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118" } ], "opinion_index": 0 }, { "cite": "337 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552733 ], "year": 1994, "pin_cites": [ { "page": "681", "parenthetical": "quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0674-01" ] }, { "cite": "140 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11634688, 11634848, 11634818, 11634787, 11635043, 11634759, 11634727, 11634921, 11635018, 11634704, 11635185, 11634993, 11635091, 11634969, 11635131, 11634878 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1135-01", "/us/522/1135-07", "/us/522/1135-06", "/us/522/1135-05", "/us/522/1135-13", "/us/522/1135-04", "/us/522/1135-03", "/us/522/1135-09", "/us/522/1135-12", "/us/522/1135-02", "/us/522/1135-16", "/us/522/1135-11", "/us/522/1135-14", "/us/522/1135-10", "/us/522/1135-15", "/us/522/1135-08" ] }, { "cite": "489 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "407" } ], "opinion_index": 0 }, { "cite": "347 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551309 ], "year": 1997, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0001-01" ] }, { "cite": "510 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659840, 1659913, 1659787, 1659967 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0506-01", "/nc/348/0506-04", "/nc/348/0506-02", "/nc/348/0506-03" ] }, { "cite": "495 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "763" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 559", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656016 ], "year": 1998, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0559-01" ] }, { "cite": "471 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "delay of three years enough to trigger inquiry into remaining factors" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919450 ], "year": 1996, "pin_cites": [ { "parenthetical": "delay of three years enough to trigger inquiry into remaining factors" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0659-01" ] }, { "cite": "485 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53889, 53859, 54090, 53880, 54014 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0758-01", "/nc/345/0758-03", "/nc/345/0758-05", "/nc/345/0758-04", "/nc/345/0758-02" ] }, { "cite": "478 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "19", "parenthetical": "quoting Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889840 ], "year": 1996, "pin_cites": [ { "page": "466", "parenthetical": "quoting Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0462-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 9, "year": 1972, "pin_cites": [ { "page": "533" }, { "page": "118" }, { "page": "532" }, { "page": "118" }, { "page": "532" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "360 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "295" }, { "page": "295-96" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358014 ], "year": 1987, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0156-01" ] }, { "cite": "309 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "508 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "328" }, { "page": "328" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11201411 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "471" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0465-01" ] }, { "cite": "347 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "734-35" } ], "opinion_index": 0 }, { "cite": "318 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732922 ], "year": 1986, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0054-01" ] }, { "cite": "365 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "321 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567442 ], "year": 1988, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0594-01" ] }, { "cite": "432 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521836 ], "year": 1993, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0310-01" ] }, { "cite": "375 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "306", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-926(b)(2) (1988)" }, { "page": "306" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527326 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "527", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-926(b)(2) (1988)" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0523-01" ] } ], "analysis": { "cardinality": 1072, "char_count": 27830, "ocr_confidence": 0.755, "pagerank": { "raw": 2.9282303665444984e-07, "percentile": 0.84714147427128 }, "sha256": "27524bbd9475418e9c867e94250b2ce3b5e3de76350f374ddf222a800e35ccaa", "simhash": "1:493f7968993d8fdd", "word_count": 4688 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and HORTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL LEONARD LUNDY and RONALD LEE EVANS, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDefendants Michael Leonard Lundy and Ronald Lee Evans appeal from their convictions of second-degree murder in the shooting death of Richard Palmer Evans. Having carefully examined defendants\u2019 assignments of error, we conclude that the trial court committed no error.\nOn 22 January 1994, defendant Evans was arrested and charged with the murder of Richard Palmer Evans (\u201cthe victim\u201d), which occurred on the previous evening. Defendant Lundy was also arrested, and he was charged with being an accessory after the fact to the victim\u2019s murder. On 21 March 1994, the grand jury returned a true bill of indictment against defendant Lundy on the accessory charge and, on 4 April 1994, indicted defendant Evans for murder. Subsequently, on 24 June 1997, the grand jury also indicted defendant Lundy for the victim\u2019s murder.\nOn 8 May 1997, defendant Evans moved to dismiss the charge against him on the ground that he was denied the right to a speedy trial. The trial court conducted a hearing on the motion and entered an order on 21 August 1997 denying the motion after concluding that there had been no infringement on defendant Evan\u2019s right to a speedy trial. The cases against both defendants came on for trial at the 15 September 1997 Criminal Session of Wake County Superior Court, and the State moved to join the offenses against defendant Lundy and to join the cases against both defendants for trial. Although defendants objected to having their charges joined for trial, the judge allowed both motions for joinder.\nThe evidence presented by the State at trial tended to show the following facts: Defendant Lundy, defendant Evans, and Carl Carlisle were friends and \u201cbusiness associates\u201d from Virginia who came to North Carolina in January of 1994 to sell crack cocaine. Carlisle testified that he and defendant Evans sold drugs out of a location in Walnut Terrace and that defendant Lundy sold drugs out of the victim\u2019s home, which was located at 906 South East Street in Raleigh. In return for the use of the victim\u2019s home, defendant Lundy agreed to split the sale proceeds with the victim 80/20.\nOn the night of 21 January 1994, Carlisle drove to the victim\u2019s house, where he found defendants Lundy and Evans waiting outside. Defendants approached the vehicle, and in view of both Carlisle and defendant Lundy, defendant Evans reached under the passenger\u2019s seat and retrieved a gun belonging to him and defendant Lundy. With the gun tucked in the waistband of defendant Evan\u2019s clothing, defendants proceeded to the door of the victim\u2019s house. Carlisle parked the car and reached the front porch just as defendant Evans was knocking on the door. When the victim came to the door, defendants confronted him about a $500 shortage in the proceeds from his sale of the drugs. The victim stated that he was dissatisfied with the fee arrangement and wanted to change the split to 60/40. Defendants and the victim argued about the matter for approximately twenty minutes before Carlisle said, \u201cLet\u2019s go.\u201d As he and defendant Lundy were turning to leave, defendant Evans fired the gun, killing the victim. Defendants and Carlisle fled the scene and drove to a house in Walnut Terrace. Defendants traded clothing, and defendant Lundy disposed of the gun by throwing it into a sewer.\nThe State also presented the testimony of several witnesses who corroborated Carlisle\u2019s account of the events. Cerranz Harrison testified that he was in the victim\u2019s house at the time of the shooting and that although he did not see who was on the porch, he recognized the voice of one of the men arguing with the victim as that of defendant Evans. In addition, Arthur Bernard Clinding stated that he too had sold drugs with defendant Evans and that on the night of the murder, defendant Evans told him that he had shot someone. Lastly, the victim\u2019s brother, Robert, testified that on the night of the shooting, defendants Lundy and Evans had been outside on the porch arguing with the victim for approximately fifteen minutes when he saw the flash of a gun firing. He stated, however, that he did not see who did the shooting.\nAt the close of the State\u2019s evidence, defendants moved to dismiss the charges against them, and the trial court denied the motions. Neither defendant presented any evidence in his defense, and the court instructed the jury on the theory of acting in concert. The jury returned guilty verdicts against both defendants on the charge of second-degree murder and found defendant Lundy not guilty of being an accessory after the fact. The trial court found that the factors in aggravation outweighed the factors in mitigation and sentenced each defendant to a term of 45 years imprisonment. Defendants appeal.\nDEFENDANT LUNDY\nDefendant Lundy\u2019s first assignment of error is that the trial judge improvidently allowed the State\u2019s motion to join the cases against him and defendant Evans for trial. Defendant Lundy contends that he was denied his constitutional right to a fair trial by reason of this ruling. We must disagree.\nThe trial judge may properly join for trial charges against multiple defendants when, as in the present case, \u201cthe offenses charged are \u2018part of the same act or transaction\u2019 or are \u2018so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.\u2019 \u201d State v. Fink, 92 N.C. App. 523, 527, 375 S.E.2d 303, 306 (1989) (quoting N.C. Gen. Stat. \u00a7 15A-926(b)(2) (1988)). The judge may likewise join defendants for trial when their offenses \u201c[are] part of a common scheme or plan.\u201d N.C.G.S. \u00a7 15A-926(b)(2). However, joinder of multiple defendants is improper if it will impair any one defendant\u2019s right to a fair determination of his guilt or innocence. N.C. Gen. Stat. \u00a7 15A-927(c)(2) (1997). In the end, the decision whether to try multiple defendants jointly is within the solid discretion of the trial judge and will not be overturned on appeal absent manifest abuse of that discretion. State v. Pendergrass, 111 N.C. App. 310, 315, 432 S.E.2d 403, 406 (1993). \u201cThe test for determining whether a trial judge abused his discretion in joining defendants for trial is \u2018whether the conflicts in the defendants\u2019 respective positions at trial [are] of such a nature tha,t, considering all of the evidence in the case, defendant was denied a fair trial.\u2019 \u201d Fink, 92 N.C. App. at 528, 375 S.E.2d at 306 (quoting State v. Green, 321 N.C. 594, 601, 365 S.E.2d 587, 591 (1988)).\nWe are satisfied that consolidating the present defendants\u2019 charges for trial did not result in any unfair prejudice to defendant Lundy. Here, neither defendant put on a defense, and there is nothing in the record to suggest that this course of action was forced on either defendant as a result of a position or strategy taken by the other defendant. Indeed, given the lack of evidence offered by either defendant, we are unable to discern any conflict in their respective positions that would have denied them a fair determination of their guilt or innocence. We note that \u201c[t]his is not a case where the [S]tate simply stood by and relied on the testimony of the respective defendants to convict them.\u201d State v. Lowery, 318 N.C. 54, 60, 347 S.E.2d 729, 734-35 (1986). Instead, the State, not defendants, came forward with the evidence necessary to establish the guilt of both defendants. Accordingly, we conclude that the joint trial of defendants did not deprive defendant Lundy of a fair trial.\nDefendant Lundy next assigns error to the denial of his motion to dismiss the charge of second-degree murder based on the theory that he was acting in concert with defendant Evans and was, therefore, equally responsible for the victim\u2019s murder. It is defendant Lundy\u2019s contention that because the evidence tends to show that the shooter acted spontaneously without any encouragement or assistance, the State\u2019s evidence was insufficient as a matter of law to show that defendants acted in concert. Again, we disagree.\nThe law is well settled regarding a trial judge\u2019s evaluation of a motion to dismiss a criminal offense.\n\u201cThe question for the court in ruling upon defendant\u2019s motion for dismissal is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If substantial evidence of both of the above has been presented at trial, the motion is properly denied. ... In considering a motion to dismiss, the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom.\n. . . Contradictions and discrepancies in the evidence are strictly for the jury to decide.\u201d\nState v. Huggins, 71 N.C. App. 63, 66, 321 S.E.2d 584, 586 (1984) (quoting State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1998) (citations omitted)), quoted in State v. Childers, 131 N.C. App. 465, 471, 508 S.E.2d 323, 328 (1998). Substantial evidence, such as that necessary to support a conviction, is that amount of evidence that a rational trier of fact would accept as adequate to find that a particular element exists beyond a reasonable doubt. Id.\nDefendant Lundy was charged with second-degree murder under the theory that he acted with defendant Evans in taking the life of the victim. \u201cSecond-degree murder is the unlawful killing of a human being with malice, but without premeditation and deliberation.\u201d State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983). Malice exists when \u201cthe defendant intentionally takes the life of another without excuse, just cause, or justification.\u201d Childers, 131 N.C. App. at 471, 508 S.E.2d at 328. \u201cA defendant acts in concert with another to commit a crime when he acts in harmony or in conjunction with another pursuant to a common criminal plan or purpose.\u201d State v. Moore, 87 N.C. App. 156, 159, 360 S.E.2d 293, 295 (1987). To be convicted of a crime under the theory of acting in concert, the defendant need not do any particular act constituting some part of the crime. Id. All that is necessary is that the defendant be \u201cpresent at the scene of the crime\u201d and that he \u201cact[] together with another who does the acts necessary to constitute the crime pursuant to \u00e1 common plan or purpose to commit the crime.\u201d Id. at 159, 360 S.E.2d at 295-96.\nApplying the foregoing principles to the evidence in the instant case, we find no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss. Viewed in the light most favorable to the State, the evidence presented and the inferences logically drawn therefrom show that defendants Lundy and Evans engaged in a common plan to shoot the victim. Both defendants traveled from Virginia to North Carolina pursuant to a joint enterprise to sell crack cocaine. Defendant Lundy recruited the victim to sell drugs out of his home and offered him an 80/20 split of the sale proceeds. The victim, apparently dissatisfied with the fee arrangement, came up $500.00 short on the drug transactions. With defendant Lundy\u2019s full knowledge, defendant Evans retrieved a gun belonging to both defendants, and the two returned to the victim\u2019s house to confront him about the shortage. An argument erupted between defendants and the victim that lasted approximately twenty minutes. Just as defendant Lundy was turning to leave, defendant Evans pulled out the gun and shot the victim. After fleeing the scene, defendants traded clothing to alter their appearances and defendant Lundy disposed of the gun by throwing it into a sewer.\nThe cumulative effective of this evidence demonstrates that the trial judge correctly denied defendant Lundy\u2019s motion to dismiss, as there was an abundance of evidence to show that he acted in concert with defendant Evans. Therefore, defendant Lundy\u2019s assignment of error fails.\nDEFENDANT EVANS\nLike defendant Lundy, defendant Evans argues that the trial judge erred in consolidating both defendants\u2019 cases for trial and in submitting the charge of second-degree murder to the jury on the theory that defendants acted in concert. For the reasons given in our discussion of these issues as they relate to defendant Lundy, we reject defendant Evans\u2019 arguments as unpersuasive. We turn then to his argument that the court committed reversible error in denying his motion to dismiss for lack of a speedy trial. Defendant Evans contends that he suffered undue prejudice as a result of the delay of three and one-half years in bringing his case to trial. On the record before us, we must disagree.\nThe Supreme Court of the United States has articulated a balancing test to determine whether a criminal defendant has been denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. In applying the test, the court must consider four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant\u2019s assertion of the right to a speedy trial, and (4) whether the defendant has been prejudiced by the delay. Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1972). The issue of whether a transgression of a defendant\u2019s right to a speedy trial has occurred is not resolved by any one factor; \u201crather, the factors must be examined as a whole, \u2018with such other circumstances as may be relevant.\u2019 \u201d State v. Johnson, 124 N.C. App. 462, 466, 478 S.E.2d 16, 19 (1996) (quoting Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118), cert. denied, 345 N.C. 758, 485 S.E.2d 304 (1997). \u201cThe test under the speedy trial provision of Article 1, \u00a7 18 of the North Carolina Constitution is identical.\u201d Id.\nThe first factor, the length of the delay, is essentially a triggering device, as it does not determine whether a constitutional violation has occurred, but may, if the delay is substantial, trigger the Barker inquiry. Id. In the case under review, defendant\u2019s trial did not commence until 1332 days, or 44 months, or over three and one-half years from the date of his arrest. It is our judgment that this delay merits examination of the other three factors. See State v. Chaplin, 122 N.C. App. 659, 471 S.E.2d 653 (1996) (delay of three years enough to trigger inquiry into remaining factors).\nAs to the reason for the delay, defendant bears the burden of proving that the delay was brought about by neglect or willfulness on the part of the prosecution. State v. Jacobs, 128 N.C. App. 559, 568, 495 S.E.2d 757, 763, disc. review denied, 348 N.C. 506, 510 S.E.2d 665 (1998). Here, defendant Evans has not met that burden. The record indicates that shortly after his indictment, defendant Evans was bonded out of jail and remained free on bond until this case came to trial. In June of 1994, defendant Evans waived arraignment and entered a plea of not guilty. In the fall of 1994, the prosecutor learned that defendant Evans had been arrested and charged with murder in the State of Virginia. The prosecutor contacted the authorities in Virginia and was advised that it would take anywhere from six to eight months to dispose of the murder charge. Several months later, the prosecutor again contacted the authorities in Virginia and was told that defendant Evans was still in custody there and that it would be several more months before the case was resolved. When the prosecutor again contacted the Virginia authorities in the fall of 1995, he was advised that defendant Evans had been placed on probation pursuant to a plea arrangement.\nMindful of his own congested trial schedule as well as that of defendant Evans\u2019 attorney, the prosecutor did not schedule this matter for trial until the week of 23 September 1996. Defendant Evan\u2019s counsel, however, moved for a continuance alleging that he needed more time to prepare for trial. The prosecutor attempted to reset the case for October of 1996 but decided against it after a conversation with defendant Evan\u2019s counsel who desired to provide the State with exculpatory evidence. In November of 1996, the prosecutor was elected to the position of District Court Judge, and in December of 1996, he was sworn into office. Thereafter, the matter had to be reassigned to another prosecutor and was brought to trial in the fall of 1997. In light of these facts, we are persuaded that the delay was not the result of prosecutorial willfulness or neglect.\nRegarding the third factor, we note that defendant Evans first asserted his right to a speedy trial in a motion filed 7 May 1997, more than three years after his arrest. While, \u201c [defendant's failure to assert his right to a speedy trial sooner in the process does not foreclose his speedy trial claim, [it] does weigh against his contention that he has been denied his constitutional right to a speedy trial.\u201d State v. Flowers, 347 N.C. 1, 28, 489 S.E.2d 391, 407 (1997), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998).\nWith regard to the issue of prejudice, we recognize that the objectives of the right to a speedy trial are: \u201c \u2018(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.\u2019 \u201d State v. Webster, 337 N.C. 674, 681, 447 S.E.2d 349, 352 (1994) (quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118). The most serious of these aims is the last, \u201cbecause the inability of a defendant to adequately prepare his case skews the fairness of the entire system.\u201d Id. (quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118).\nDefendant Evans has not shown that he was prejudiced by the delay. Although he testified that he had to return to the State of North Carolina at least 10 times to appear in court regarding this matter, the trial judge found, and we agree that defendant Evans\u2019 personal life was not unfairly affected by the delay, especially given the several other criminal charges he incurred since January of 1994. As to defendant Evans\u2019 claim that the delay caused the memories of Robert Evans, the victim\u2019s brother, and Cerranz Harrison to fade, we can find no prejudice. First, we note that defendant Evans has failed to show how Harrison\u2019s faded memory negatively impacted his defense. Secondly, the record reveals that the testimony of Robert Evans at trial tended to implicate defendant Lundy as the shooter and to suggest that defendant Evans was turning to leave when the shot was fired. As our Supreme Court stated in State v. Dietz, 289 N.C. 488, 223 S.E.2d 357 (1976), \u201c[h]ardly a criminal case exists where the defendant could not make these general averments of impaired memory and lost witnesses.\u201d Id. at 493, 223 S.E.2d at 361. Therefore, defendant Evans\u2019 argument is unpersuasive.\nBalancing the Barker factors, we hold that defendant Evans was not denied his constitutional right to a speedy trial, and the trial court did not err in denying his motion to dismiss.\nDefendant Evans also assigns error to the admission of evidence regarding his drug dealing activities. He argues that this evidence was impermissible character evidence under Rule 404(b) of the North Carolina Rules of Evidence. We cannot agree.\nRule 404(b) of the Rules of Evidence provides that \u201c[e]vidence 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.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (Cum. Supp. 1998). Our Supreme Court has reiterated that Rule 404(b) is a \u201cgeneral rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring exclusion if its only probative value is to show . . . defendant has the propensity ... to commit an offense of the nature of the crime charged.\u201d State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).\nOn the facts of the case sub judice, we agree with the State\u2019s position that the evidence of defendant Evans\u2019 drug dealing activities was relevant to show his motive for murdering the victim. The transcript of the evidence reveals that the State\u2019s theory at trial was that defendants Evans and Lundy murdered the victim over a fee dispute regarding drug transactions the victim conducted for defendant Lundy. The State\u2019s evidence tended to show that the victim wanted a 60/40, rather than an 80/20 split of the sale proceeds and that he had come up $500 short when it was time to pay defendant Lundy for the merchandise sold. The argument resulting in the victim\u2019s death occurred when defendants Lundy and Evans confronted the victim about the issue of his fee for selling the drugs, and given that the murder was inextricably tied to the drug activities of both defendants, we hold that evidence of the same was relevant to establish motive for the killing. See State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996) (testimony regarding defendant\u2019s drug dealings properly admitted under Rule 404(b) to show motive where State contended that victim was killed for stealing cocaine from one of defendant\u2019s \u201clieutenants\u201d). Thus, defendant Evans\u2019 assignment of error is overruled.\nWith his next assignment of error, defendant Evans contends that the court erred in failing to give his requested instruction regarding \u201cmere presence\u201d as it relates to concerted action. During the charge conference and again after the jury requested clarification of \u201cacting in concert,\u201d defendant submitted a request for the following instruction: \u201c[M]ere presence at the scene of the crime alone is not sufficient to establish acting in concert. To find the defendant guilty of acting in concert, the State must prove beyond a reasonable doubt that the defendant in fact shared in a common purpose to commit a crime.\u201d We agree with defendant Evans that this is a correct statement of the law. See State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971), death sentence vacated, 408 U.S. 939, 33 L. Ed. 2d 761 (1972) (court correctly charged jury that \u201cmere presence of a person at the scene of a crime at the time of its commission does not make him guilty of the offense, but that if two persons are acting together, in pursuance of a common plan and common purpose . . . and one of them actually does the [crime], both would be guilty within the meaning of the law\u201d). However, we conclude that the trial court properly instructed the jury regarding \u201cacting in concert,\u201d and its failure to give the requested instruction verbatim was not error.\n\u201c[I]t is well established that a request for a specific instruction which is correct in law and supported by the evidence must be granted at least in substance.\u201d State v. Williams, 98 N.C. App. 68, 71, 389 S.E.2d 830, 832 (1990). This notwithstanding, \u201cthe trial judge is not required to give the requested instruction verbatim.\u201d Id.\nIn the present case, the trial judge gave the following charge regarding concerted action:\nAgain, I instruct you that for a person to be guilty of a crime it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons join in a purpose to commit a crime, each of them if actually or constructively present is not only guilty of that crime of second degree murder if the other commits the crime, but he is also guilty of any other crime committed by the other in the pursuance of a common purpose to commit second degree murder or as a natural and probable consequence therefore [sic].\nSo I charge you, ladies and gentlemen, if you find from the evidence beyond a reasonable doubt that on or about the alleged date, January 21, 1994, the defendant Ronald Lee Evans acting either by himself or acting together with Michael Leonard Lundy, intentionally and with malice killed the victim Richard Palmer Evans with a deadly weapon, it would be your duty to return a verdict of guilty of second degree murder.\nFrom these instructions, the jury could reasonably infer that more than \u201cmere presence\u201d was necessary to find that defendant Evans acted in concert with defendant Lundy. The trial judge made it abundantly clear that to convict defendant Evans of second-degree murder under the theory that he \u201cacted in concert\u201d with defendant Lundy, the jury had to find beyond a reasonable doubt that defendant Evans joined in or shared a common plan with defendant Lundy to commit the offense. We, therefore, hold that the trial court\u2019s instruction on the doctrine of \u201cacting in concert\u201d was without legal error. Furthermore, we have examined defendant Evans\u2019 contention that the court erred in failing to require the jury to complete a special verdict sheet designating the theory under which he was convicted and find it to be without merit.\nIn sum, our review of the record reveals that defendants Lundy and Evans received a fair trial, free from prejudicial error.\nNO ERROR.\nJudges GREENE and HORTON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Robert T. Hargett, for the State.", "John E Oats, Jr. for defendant-appellant Michael Leonard Lundy.", "Karl E. Knudsen for defendant-appellant Ronald Lee Evans." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL LEONARD LUNDY and RONALD LEE EVANS, Defendants\nNo. COA98-1257\n(Filed 21 September 1999)\n1. Criminal Law\u2014 motion to join granted \u2014 no error\nThe trial court did not abuse its discretion in a second-degree murder case by allowing the State\u2019s motion to join the two defendants for trial because the State came forward with the evidence necessary to establish the guilt of both defendants, neither defendant put on a defense, and there is nothing in the record to suggest this course of action was forced on either defendant as a result of a position or strategy taken by the other defendant.\n2. Homicide\u2014 second-degree murder \u2014 acting in concert\u2014 common plan \u2014 sufficient evidence\nThe trial court did not err by denying defendants\u2019 motion to dismiss the second-degree murder charge based on the theory of acting in concert because the evidence viewed in the light most favorable to the State reveals that defendants engaged in a common plan to shoot the victim relating to their joint enterprise of selling crack cocaine.\n3. Constitutional Law\u2014 speedy trial \u2014 second-degree murder \u2014 no violation\nThe trial court did not err in denying defendant Evans\u2019 motion to dismiss the second-degree murder charge based on lack of a speedy trial even though his trial was over three and one-half years from the date of his arrest because: (1) the delay was not the result of prosecutorial willfulness or neglect; (2) defendant did not assert his right to a speedy trial until more than three years after his arrest, which does not foreclose his right but does weigh against him; and (3) defendant has not shown that he was prejudiced by the delay, especially given the several other criminal charges he incurred since his arrest.\n4. Evidence\u2014 drug dealing activities \u2014 not bad character\u2014 motive\nThe trial court did not err in a second-degree murder case by admitting evidence regarding defendant Evans\u2019 drug dealing activities because it was relevant to show his motive for murdering the victim instead of merely to show his bad character.\n5. Criminal Law\u2014 requested jury instructions denied \u2014 verbatim not required \u2014 jury could reasonably infer\nThe trial court did not err in a second-degree murder case by failing to give defendant Evans\u2019 requested jury instruction regarding \u201cmere presence\u201d as it relates to acting in concert because the trial court is not required to give the requested instruction verbatim and the jury could reasonably infer from the trial court\u2019s instructions that more than \u201cmere presence\u201d was necessary.\nAppeal by defendants from judgments entered 19 September 1997 by Judge J.B. Allen, Jr. in Wake County Superior Court. Heard in the Court of Appeals 24 August 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Robert T. Hargett, for the State.\nJohn E Oats, Jr. for defendant-appellant Michael Leonard Lundy.\nKarl E. Knudsen for defendant-appellant Ronald Lee Evans." }, "file_name": "0013-01", "first_page_order": 47, "last_page_order": 58 }