State of North Carolina v. Rashawn Harwell (COA25-348) is a Durham County case in which Mr. Harwell was convicted of second-degree murder based on the State’s theory of acting in concert. Mr. Harwell appealed his conviction to the North Carolina Court of Appeals raising the issues of insufficient evidence and the trial court’s denial of his request to instruct the jury on involuntary manslaughter.
In September of 2020, Mr. Harwell and two of his associates were at a Cookout restaurant in Durham where they encountered the victim and the victim’s girlfriend. Mr. Harwell challenged the victim to a fight but the victim declined and went to his car. Mr. Harwell followed the victim and told him, “I’ll D.O.A. you.” The victim’s girlfriend asked Mr. Harwell to stop. Instead, Mr. Harwell went to the driver’s side of the vehicle and his two associates positioned themselves in the front and passenger side of the vehicle. The victim started his car and proceeded to drive away. The sequence of events that followed was captured on the surveillance cameras of a nearby business. Mr. Harwell fired two shots as the victim’s vehicle moved. The victim’s girlfriend would describe the shots as “a warning” that could have gone “anywhere.” Mr. Harwell’s associates fired multiple shots at the victim’s car as it was driving away. The car travelled across the street and ultimately collided with a parked vehicle at an auto dealership.
Officers responding to the scene found that the area was in chaos with many people leaving in cars and travelling at high speeds. Officers found the victim inside his vehicle with a gunshot wound to the back of his head. The medical examiner later determined that a single gunshot wound caused the victim’s death. However, the bullet fragments that were recovered from the victim could not be matched to any firearm. Nevertheless, 42 shell casings were recovered from the scene that were linked to six different firearms. A .40 caliber casing found inside the victim’s car matched a handgun that was later recovered from Mr. Harwell’s apartment. There were .22 caliber cases found in the parking lot of the Cookout restaurant.
Mr. Harwell was indicted by a Durham County grand jury for first-degree murder, but the State proceeded to trial on second-degree murder based on a theory of acting in concert. During the trial, Mr. Harwell made a motion to dismiss based on the State’s failure to present sufficient evidence that he or anyone acting in concert with him fired the shot that killed the victim. The trial court denied Mr. Harwell’s motion. Mr. Harwell presented no witnesses or exhibits. During the charge conference, Mr. Harwell requested an instruction on involuntary manslaughter. That request was denied and the jury was instructed on second-degree murder and voluntary manslaughter. The jury found Mr. Harwell guilty of second-degree murder and he gave notice of appeal. Below we will look at the analysis of each of these issues by the North Carolina Court of Appeals.
The appellate Court conducted a de novo review of the trial court’s denial of Mr. Harwell’s motion to dismiss. The question to be decided by the Court was whether taken in the light most favorable to the State, had there been substantial evidence of each essential element of the offense charged or of a lesser included offense and of Mr. Harwell being the perpetrator of the offense. The North Carolina Supreme Court has recognized that under the theory of acting in concert, the State must show that the defendant “acted together with another who did the acts necessary to constitute the crime pursuant to a common plan or purpose.” State v. Glover, 376 N.C. 420, 427 (2020). Additionally, it is not necessary that the defendant commit the fatal act themself. State v. Oxendine, 187 N.C. 658 (1924),
Mr. Harwell contended that the State failed to prove that one of his associates, as opposed to another shooter, fired the fatal shot. However, the Court pointed out that surveillance video showed Mr. Harwell firing two shots and his associates positioning themselves near the victim’s car and firing many shots at the vehicle at close range as it drove away. These events were corroborated by the physical evidence that was recovered at the scene. Although the bullet fragments recovered from the victim were never matched to a firearm, the circumstantial evidence that was presented was sufficient to survive a motion to dismiss. State v. Thomas, 295 N.C. App. 269, 274 (2024).
Whether or not the evidence presented creates a reasonable inference of guilt is a question to be decided by the jury. When viewed in the light most favorable to the State, a reasonable jury could conclude that one of the associates, acting in concert with Mr. Harwell, fired the shot that killed the victim. Hence, the appellate Court concluded that the trial court did not err by denying Mr. Harwell’s motion to dismiss.
The appellate Court also reviewed the trial court’s denial of Mr. Harwell’s request for an instruction on involuntary manslaughter de novo. Under State v. Brichikov, 383 N.C. 543, 554 (2022), “An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.”
The element of malice is what distinguishes second-degree murder and involuntary manslaughter. Here, a deadly weapon was used to kill the victim. Unless rebutted by conflicting evidence, there is a presumption of malice when a deadly weapon causes a death. Brichikov, 383 N.C. at 555. Mr. Harwell argues that the statements by the victim’s girlfriend demonstrate that the shooting was done without malice. However, there was evidence presented that Mr. Harwell challenged the victim to a fight, made threats to the victim, and fired a weapon as the victim attempted to leave. His actions suggest more than mere recklessness on his part. Because the State proceeded on a theory of acting in concert in which the actions were conducted for a common purpose, the actions of Mr. Harwell’s associates of firing multiple shots directly at the victim’s vehicle were not accidental, justified, nor without malice. The trial court instructed the jury on voluntary manslaughter which also does not require malice. However, the jury declined to convict on voluntary manslaughter. The appellate Court concluded that the trial court did not err by refusing to give an instruction on involuntary manslaughter. Consequently, the Court found that Mr. Harwell’s trial was without error.
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