{ "id": 8523727, "name": "STATE OF NORTH CAROLINA v. GARY LUNDY HICKS", "name_abbreviation": "State v. Hicks", "decision_date": "1983-02-15", "docket_number": "No. 8222SC519", "first_page": "718", "last_page": "724", "citations": [ { "type": "official", "cite": "60 N.C. App. 718" } ], "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": "276 S.E. 2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571234, 8571204, 8571271, 8571306, 8571166 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0723-03", "/nc/301/0723-02", "/nc/301/0723-04", "/nc/301/0723-05", "/nc/301/0723-01" ] }, { "cite": "268 S.E. 2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549962 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0222-01" ] }, { "cite": "92 S.Ct. 2862", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "33 L.Ed. 2d 754", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "408 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782880, 1782721, 1782787, 1782947, 1782890, 1782763, 1782892, 1782990, 1782840, 1782802, 1782708, 1782743, 1782808, 1782778, 1782907, 1782748 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0937-05", "/us/408/0937-12", "/us/408/0937-07", "/us/408/0937-08", "/us/408/0937-04", "/us/408/0937-11", "/us/408/0937-10", "/us/408/0937-03", "/us/408/0937-14", "/us/408/0937-02", "/us/408/0937-15", "/us/408/0937-13", "/us/408/0937-01", "/us/408/0937-09", "/us/408/0937-06", "/us/408/0937-16" ] }, { "cite": "174 S.E. 2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563250 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0674-01" ] }, { "cite": "199 S.E. 2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "284 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559900 ], "year": 1973, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0067-01" ] }, { "cite": "231 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558753 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0505-01" ] }, { "cite": "232 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567970 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0219-01" ] } ], "analysis": { "cardinality": 648, "char_count": 12945, "ocr_confidence": 0.816, "pagerank": { "raw": 1.0019554220356728e-07, "percentile": 0.5391445601654768 }, "sha256": "a6d8e1a56958364cc420c6529e000d7744262d001e71b73938537ac8fd77235f", "simhash": "1:833fe5955e06f81a", "word_count": 2162 }, "last_updated": "2023-07-14T17:52:46.639047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and WhichArd concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GARY LUNDY HICKS" ], "opinions": [ { "text": "VAUGHN, Chief Judge.\nDefendant\u2019s first argument is that the trial court erred in denying his motion to dismiss at the close of the State\u2019s evidence. Defendant\u2019s motion to dismiss requires the trial court to consider all the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference drawn from the evidence. State v. Stewart, 292 N.C. 219, 232 S.E. 2d 443 (1977). The question is whether there is substantial evidence, direct, circumstantial, or both, to support a finding that the offense charged has been committed and the accused committed it. State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977).\nThe offense of discharging a firearm into occupied property, G.S. 14-34.1, is defined as follows:\nAny person who willfully or wantonly discharges or attempts to discharge:\n(1) Any barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second; or\n(2) A firearm\ninto any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class H felony.\nThis statute was explained in State v. Williams, 284 N.C. 67, 73, 199 S.E. 2d 409, 412 (1973):\nWe hold that a person is guilty of the felony created by G.S. 14-34.1 if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons. (Emphasis in original.)\nDefendant contends that there was insufficient evidence for the jury to find that he knew or had reasonable grounds to believe that Ward\u2019s house was occupied at the time of shooting. The evidence, however, viewed in the light most favorable to the State tends to show that defendant and Ward lived in a small community; they had known each other since 1973; Hall visited Ward, at his house, three days before the shooting; and the shooting occurred at 5:00 a.m., a time when people are usually at home. Furthermore, Ward\u2019s house had a garage, which explains why no cars were parked in front of his house. Defendant contends that the State offered evidence that the house was \u201cunder construction\u201d and thus appeared unoccupied. While it is true that if the State\u2019s evidence tends only to exonerate a defendant from a particular charge his motion for nonsuit should be allowed, State v. Hamby, 276 N.C. 674, 174 S.E. 2d 385 (1970), death penalty vacated, 408 U.S. 937, 33 L.Ed. 2d 754, 92 S.Ct. 2862 (1972), this evidence does not indicate that the house appeared unoccupied. Viewed in the light most favorable to the State, the \u201crock work\u201d was probably covering the cement block foundation. That it was unfinished did not make the house uninhabitable. Since there was no evidence that the house was otherwise incomplete, the unfinished \u201crock work\u201d would not indicate the house was unoccupied. Clearly there was substantial evidence to support a finding that the offense was committed, and defendant committed it. Defendant\u2019s motion to dismiss was properly denied.\nDefendant\u2019s second argument is that the trial judge erred by failing to instruct the jury on testimony of a witness with immunity or quasi-immunity as follows:\nThere was evidence which tends to show that Barbara Lackey was testifying under an agreement to dismiss the charges against her in exchange for her testimony. If you find that she testified in whole or in part for this reason you should examine her testimony with great care and caution in deciding whether or not to believe it. If, after doing so, you believe her testimony in whole or in part, you should treat what you believe the same as any other believable evidence.\nDefendant contends that since Lackey had an agreement with the district attorney that if she testified the charges against her would be dropped, the above instruction was required by G.S. 15A-1052(c). We do not agree for two reasons: the applicable statute does not require the instruction, and at trial defendant requested an accomplice instruction, not the above instruction. G.S. 15A-1052 provides, in pertinent part:\n(a)When the testimony or other information is to be presented to a court . . . the order to the witness to testify or produce other information must be issued by a superior court judge. . . .\n(c) In a jury trial the judge must inform the jury of the grant of immunity and the order to testify prior to the testimony of the witness under the grant of immunity. During the charge to the jury, the judge must instruct the jury as in the case of interested witnesses.\nAs the official commentary to G.S. 15A-1051 explains, a formal grant of immunity is not conferred unless the witness is asked an incriminating question, he claims his privilege against self-incrimination, the judge orders him to answer the question, and the witness then answers the question. Clearly, Lackey was not granted formal immunity. Her agreement was pursuant to G.S. 15A-1054, which does not require particular jury instructions. The statute provides:\n(a) Whether or not a grant of immunity is conferred under this Article, a prosecutor, when the interest of justice requires, may exercise his discretion not to try any suspect for offenses believed to have been committed within the judicial district, to agree to charge reductions, or to agree to recommend sentence concessions, upon the understanding or agreement that the suspect will provide truthful testimony in one or more criminal proceedings.\n(b) Recommendations as to sentence concessions must be made to the trial judge by the prosecutor in accordance with the provisions of Article 58 of this Chapter, Procedure Relating to Guilty Pleas in Superior Court.\n(c) When the prosecutor enters into any arrangement authorized by this section, written notice fully disclosing the terms of the arrangement must be provided to defense counsel, or to the defendant if not represented by counsel, against whom such testimony is to be offered, a reasonable time prior to any proceeding in which the person with whom the arrangement is made is expected to testify. Upon motion of the defendant or his counsel on grounds of surprise or for other good cause or when the interests of justice require, the court must grant a recess.\nThe official commentary to G.S. 15A-1054 explains that the statute was enacted, with a notice requirement as a safeguard, because \u201c[T]he Commission thought that formal grants of immunity .. . would probably be few and far between. Several persons described a more informal assurance of lenience or nonprosecution ... as being more effective and much more prevalent. . . .\u201d\nIn State v. Bagby, 48 N.C. App. 222, 268 S.E. 2d 233 (1980), review denied, 301 N.C. 723, 276 S.E. 2d 284 (1981), this Court held that when a witness enters into an arrangement with the prosecutor under G.S. 15A-1054, absent a request from defendant, the trial court need not charge the jury that the witness testified as an accomplice or that the jury closely scrutinize the testimony because the witness testified under an agreement with the district attorney. Thus the statute, G.S. 15A-1054, and Bagby, set forth the rule that, absent request, the trial judge need not give an interested witness instruction to the jury. Since defendant requested an accomplice instruction only, the trial judge did not err in only giving that instruction, which was as follows:\nNow, in this case there is evidence that shows that the witness, Ronnie Hall, and the witness, Barbara Lackey, were accomplices in the commission of the crimes charged in this case. . . .\nNow, an accomplice is considered by law to have an interest in the outcome of the case. Since these two witnesses were accomplices, you should examine every part of their testimony with the greatest care and caution. If, after doing so, you believe their testimony in whole or in part, you should treat what you believe the same as any other believable evidence. (Emphasis added.)\nFurthermore, the jury was fully aware of the agreement between Lackey and the district attorney because it was elicited on cross-examination.\nWe have carefully reviewed defendant\u2019s assignments of error and find no error.\nNo error.\nJudges Wells and WhichArd concur.", "type": "majority", "author": "VAUGHN, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.", "Appellate Defender Adam Stein and Assistant Appellate Defender Malcolm R. Hunter, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY LUNDY HICKS\nNo. 8222SC519\n(Filed 15 February 1983)\n1. Weapons and Firearms \u00a7 3\u2014 discharging weapon into occupied dwelling \u2014 sufficiency of evidence\nIn a prosecution for discharging a firearm into occupied property in violation of G.S. 14-34.1, the evidence was sufficient for the jury to find that defendant knew or had reasonable grounds to believe that the house was occupied at the time of the shooting where the evidence tended to show that defendant and the owner of the home lived in a small community; they had known each other since 1973; an accomplice visited the occupant of the home at his house three days before the shooting; and the shooting occurred at 5:00 a.m.\n2. Criminal Law \u00a7 117.4\u2014 accomplice not given formal immunity \u2014 request for accomplice instruction only \u2014 no error to fail to instruct on quasi-immunity\nWhere a witness had an agreement with the district attorney that if she testified the charges against her would be dropped, the agreement was pursuant to G.S. 15A-1054 and not pursuant to G.S. 15A-1052. G.S. 15A-1054 does not require the trial judge to give an interested witness instruction to the jury, and since defendant requested an accomplice instruction only, the trial judge did not err in only giving that instruction.\nOn certiorari by defendant from Rousseau, Judge. Judgment entered 10 April 1980 in Superior Court, Iredell County. Heard in the Court of Appeals 16 November 1982.\nDefendant was charged with two counts of discharging a firearm into occupied property, in violation of G.S. 14-34.1. The State\u2019s evidence tended to show the following. State Trooper Ward testified that on 16 September 1979 he saw defendant under the hood of a Pontiac which was stopped on the road. Defendant said he could not get it to start and Ward told him to move it onto the shoulder of the road. Then Ward pursued a Buick and arrested the driver, Ronnie Hall, for driving under the influence. When Ward returned to where he had last seen defendant, the Pontiac was sitting in a ditch and the trunk was smashed in. Defendant blamed Ward for the accident and told him that if he had helped get the car off the road the accident would not have occurred. Ward also said that on 19 September 1979 Ronnie Hall visited him at his house and asked him for help when he had to go to court on the DUI charge.\nHall testified that on 22 September 1979 he, defendant, and Barbara Lackey, defendant\u2019s girlfriend, were drinking beer together. While they were out drinking they decided to shoot at Ward\u2019s house. At 5:00 or 5:30 a.m. they drove to Ward\u2019s house with two .22 caliber rifles. They stopped the car about 150 or 200 yards from the house and Hall and defendant each fired twelve to fifteen rounds. Hall saw a dim light in the house, and did not see any cars parked in the driveway. After shooting at Ward\u2019s house they drove down the street and defendant shot five or six rounds into a house belonging to James Ray Summers. Then they returned to defendant\u2019s trailer, hid the guns, drank more beer, and went to bed.\nJerry Ward, Trooper Ward\u2019s son, testified that on the morning of 22 September 1979 he was awakened by the sound of shots. At approximately 9:00 a.m. he went outside and found nineteen or twenty rifle shells.\nTrooper Ward testified that he found nineteen bullet holes in his house. He said that on the day the shooting occurred the \u201crock work\u201d in front of the house was not completed.\nBarbara Lackey testified for the State. She essentially corroborated Hall\u2019s testimony. She also said defendant hid the guns behind his trailer. She found them and gave them to Officer Redmond. She admitted she told Officer Redmond that she and defendant were in bed at the time of the shooting because defendant asked her to lie. On cross-examination she said the district attorney promised her the charges against her would be dismissed if she testified.\nDefendant did not testify. The jury found him guilty of shooting into Ward\u2019s house, and not guilty of shooting into Summers\u2019 house. He was sentenced to not less than eight nor more than ten years and the court recommended he pay Ward restitution of $500.00. Defendant\u2019s appeal was dismissed for failure to comply with the Rules of Appellate Procedure, State v. Hicks, No. 8022SC1153, 21 April 1981. A petition for writ of certiorari was allowed by this Court.\nAttorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.\nAppellate Defender Adam Stein and Assistant Appellate Defender Malcolm R. Hunter, Jr., for defendant appellant." }, "file_name": "0718-01", "first_page_order": 750, "last_page_order": 756 }