Accessory after the Fact: A Recent Decision Creates Confusion

Suppose John Jones shoots Victim. Sam Smith, who had nothing to do with the shooting, witnesses the event. In order to help Jones escape and avoid prosecution, Smith drives Jones from the scene to a hideout. Victim dies the next day. Can Smith be convicted of accessory after the fact to the murder? According to recent decision by the N.C. Court of Appeals, the answer is yes. However, according to an earlier N.C. Supreme Court decision, the answer is no. The N.C. Supreme Court addressed this issue in State v. Williams, 229 N.C. 348 (1948). In that case, the defendants were indicted for being accessories after the fact to the murder of Thompson Hooker by Bud Hicks. After Hicks shot Hooker, the defendants aided Hicks by driving him from the crime scene. Thompson died the next day. Reversing the defendants’ convictions, the court noted that “one cannot be convicted as an accessory after the fact unless the felony be completed, and, until such felony has been consummated, any aid or assistance rendered to a party in order to enable him to escape the consequences of his crime will not make the person affording the assistance an accessory after the fact.” Id. at 349 (quotation omitted). The court went on to conclude: “a person cannot be convicted as an accessory after the fact to a murder because he aided the murderer to escape, when the aid was rendered after the mortal wound was given, but before death ensued, as a murder is not complete until the death results.” Id. Although that holding seems pretty clear, the court of appeals came to a different conclusion in the recent case State v. Cole, __ N.C. App. __, __ S.E.2d __ (Jan. 4, 2011). The facts of Cole are remarkably similar to those of Williams. In Cole, the defendant was convicted of, among other things, accessory after the fact to the murder of Johnny Moore by Mark Stevons. After Stevons shot Moore, the defendant drove Stevons from the scene. After being shot, Moore ran down the street and around the back of a house, where he collapsed and died. On appeal, the defendant argued that the trial court erred by denying his motion to dismiss. He asserted that he could not be convicted of accessory after the fact to murder because he rendered assistance to Stevons before Moore died. Without citing Williams, the court rejected this argument, concluding  that because the defendant knew that Stevons shot Moore at close range, a jury could reasonably infer that the defendant knew that the shot was fatal and that as such the evidence was sufficient survive a motion to dismiss. Although Cole is more recent, it appears that Williams, decided by the state’s high court, must govern. Which brings me to a final question: if Williams governs, does the defendant get off scot-free? I think the answer to that question is no. As Williams suggests, such a defendant could be guilty of accessory after the fact to a felony assault not dependent on the victim having died. Williams, 229 N.C. at 350.