IN THE SUPREME COURT OF NORTH CAROLINA
No. 156A98
(Filed 25 JUNE 1999)
STATE OF NORTH CAROLINA
v.
CORNELIUS ALVIN NOBLES
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
a judgment imposing a sentence of death entered by Lanier
(Russell J., Jr.), J., on 10 September 1997 in Superior Court,
Sampson County, upon a jury verdict finding defendant guilty of
first-degree murder.
Defendant’s motion to bypass the Court of
Appeals as to his appeal of additional judgments was allowed by
the Supreme Court on 20 July 1998.
Heard in the Supreme Court
10 May 1999.
Michael F. Easley, Attorney General, by William P.
Hart, Special Deputy Attorney General, and William B.
Crumpler, Assistant Attorney General, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender, by Janet
Moore, Assistant Appellate Defender, for defendantappellant.
PARKER, Justice.
Defendant Cornelius Alvin Nobles was indicted on
28 October 1996 for first-degree murder and four counts of
discharging a firearm into occupied property.
On 18 July 1997
defendant was indicted for three additional counts of discharging
a firearm into occupied property.
He was tried capitally and
found guilty of first-degree murder on the basis of felony
murder.
He was also found guilty of six counts of discharging a
-2firearm into occupied property.
Following a capital sentencing
proceeding, the jury recommended a sentence of death for the
murder; and the trial court entered judgment accordingly.
The
trial court sentenced defendant to consecutive sentences of forty
to fifty-seven months each for defendant’s convictions of five
counts of discharging a firearm into occupied property and
arrested judgment for the conviction of the sixth count of
discharging a firearm into occupied property because it was the
predicate felony supporting the felony-murder conviction.
The State’s evidence tended to show that on 28 August
1996 defendant shot and killed his wife, Ronita Nobles
(“victim”).
On 25 August 1996 defendant had been charged with
assault on the victim; he was released on bond on 27 August 1996
but was to have no contact with the victim.
On the evening of
28 August 1996, defendant was driving down Paul Ed Dail Road near
Kenansville, North Carolina, in his Mercedes when he noticed his
wife’s Nissan pickup truck leaving the driveway of their house.
Defendant stopped his car in the road and flashed his lights at
the truck.
twice.
He then got out of his car and shouted at the truck
The truck left the driveway and headed in defendant’s
direction.
Defendant then took his gun out of his back pocket
and began shooting at the truck.
The driver’s side of the truck
hit defendant and ran over his foot, causing him to slam against
the driver’s side of the truck.
The truck ran off the side of
the road into a ditch.
As the truck was heading toward the ditch, Russell
Brock was driving down Paul Ed Dail Road in the opposite
-3direction of the victim’s truck.
Defendant returned to his car
and proceeded to back up toward the truck.
Defendant and Brock
approached the truck at approximately the same moment.
Defendant
opened the driver’s door and pulled the victim from the truck.
Defendant told Brock that the victim was his wife and that he had
shot her.
Defendant then removed his two-year-old daughter from
her car seat located in the passenger’s seat; next, he removed
his twin nine-month-old children, who were in car carriers, from
the back seat of the truck.
The children were unharmed.
Shortly thereafter members of the Duplin County Rescue
Squad and the Duplin County Sheriff’s Department arrived.
The
emergency medical technician found no signs of life in the victim
at the murder scene.
Seven bullet holes were found in the truck.
Defendant was arrested at the scene.
Additional facts will be presented as needed to discuss
specific issues.
JURY SELECTION ISSUES
In his first argument defendant contends that the trial
court committed reversible error under the Sixth Amendment to the
United States Constitution and Article I, Section 23 of the North
Carolina Constitution when it had unrecorded private
communications with three prospective jurors.
Defendant argues
that the excusals violated his nonwaivable right to be present at
every stage of his capital trial.
He also contends that the
excusals violated his right to a “true, complete, and accurate
record of all statements from the bench and all other
proceedings” pursuant to N.C.G.S. § 15A-1241(a).
-4The Confrontation Clause of the North Carolina
Constitution guarantees the right of every accused to be present
at every stage of his trial.
N.C. Const. art. I, § 23; State v.
Jones, 346 N.C. 704, 708-09, 487 S.E.2d 714, 717 (1997).
Furthermore, defendant’s right to be present at every stage of
his capital trial is nonwaivable.
794, 392 S.E.2d 362, 363 (1990).
State v. Smith, 326 N.C. 792,
When the trial court excludes
defendant from its private communications with prospective jurors
at the bench prior to excusing them, it has committed reversible
error unless the State can prove that the error was harmless
beyond a reasonable doubt.
Id.
A review of the jury selection process reveals that
following the trial court’s hearing of hardship excuses, six
prospective jurors were excused, and the remaining sixty-three
prospective jurors were divided into five panels.
Lester Tanner
was assigned to panel IV; Marjorie Gilbert was assigned to panel
V; and David Mixon, when he appeared in the courtroom two days
later, was also assigned to panel V.
During the morning of the
second day of jury selection, the following exchange transpired:
THE COURT: All right. . . . [W]e’re
going to take about ten minutes. Be at ease,
do what you need to do and be back here at
quarter until.
The record will reflect -- what was the
gentleman’s name that we excused?
COURT REPORTER:
THE COURT:
Tanner.
Because he was over sixty-
five.
MS. THOMAS [prosecutor]:
Peterson.
Was it Benny
-5THE CLERK: Benny Peterson’s the one we
had this morning.
COURT REPORTER:
Tanner.
MS. THOMAS:
Tanner.
I thought it was
Yeah, Tanner.
Lester
THE COURT: And, I’d advised the defense
counsel that [sic] after we had returned and
probably before we came into session.
As for prospective jurors Gilbert and Mixon, apart from being
sworn in and assigned to panel V, there is no further mention of
them in the record; and Gilbert and Mixon were not on the panel
when the roll was called for the voir dire of panel V.
Although the record is not clear whether Judge Lanier
actually engaged in a private conversation with prospective juror
Tanner prior to his excusal or whether defendant and his counsel
were excluded from such conversation, for purposes of this
appeal, we will assume that Judge Lanier did in fact violate
defendant’s nonwaivable constitutional right to be present at
every stage of his trial.
However, this error was harmless
beyond a reasonable doubt.
In State v. Adams, 335 N.C. 401, 408, 439 S.E.2d 760,
763 (1994), the trial court heard excuses from three prospective
jurors off the record and ultimately excused them.
In performing
a harmless error analysis, this Court held that since “the
transcript reveal[ed] that the substance of the unrecorded
communications with the three jurors was adequately reconstructed
by the trial judge[,] . . . the defendant’s absence from the
conference was harmless.”
Id. at 409, 439 S.E.2d at 763.
Similarly, in State v. Lee, 335 N.C. 244, 262-63, 439 S.E.2d 547,
-6555-56, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994),
this Court held that it was harmless error when the record
revealed both the substance of private communications between the
trial court and prospective jurors and that there were proper
grounds for the excusals.
See also State v. Hartman, 344 N.C.
445, 456, 476 S.E.2d 328, 334 (1996) (concluding that defendant’s
absence from the trial court’s private exchange with a
prospective juror was harmless beyond a reasonable doubt since
the record indicated that she was properly excused based upon
medical reasons), cert. denied, 520 U.S. 1201, 137 L. Ed. 2d 708
(1997); State v. Williams, 339 N.C. 1, 31, 452 S.E.2d 245, 263
(1994) (finding harmless error since the transcript revealed the
substance of the ex parte communications and defendant was not
harmed by his absence from the private conversation), cert.
denied, 516 U.S. 833, 133 L. Ed. 2d 61 (1995); State v. Payne,
328 N.C. 377, 389, 402 S.E.2d 582, 589 (1991) (holding that
questioning of prospective jurors in defendant’s absence was
harmless beyond a reasonable doubt as prospective jurors who were
excused were either ineligible to serve or excused for manifestly
unobjectionable reasons).
Defendant, however, contends that Smith and its progeny
mandate a new trial.
We disagree.
In Smith the trial court
invited prospective jurors to the bench to privately discuss
reasons for excusal.
at 363.
State v. Smith, 326 N.C. at 793, 392 S.E.2d
“After each of these unrecorded private bench
conferences, the trial court excused the prospective juror,
indicating that it was within the discretion of the court to
-7excuse that particular juror.”
Id.
Since there was no record
from which to determine the substance of the private discussions,
this Court held that “the State has failed to carry its burden
[of proving] that the trial court’s errors were harmless beyond a
reasonable doubt.”
Id. at 794, 392 S.E.2d at 364.
Again in
State v. Moss, 332 N.C. 65, 74, 418 S.E.2d 213, 219 (1992), this
Court granted the defendant a new trial because “[n]othing in the
record . . . establishe[d] the nature and content of the trial
court’s private discussions with the prospective jurors.”
See
also State v. Cole, 331 N.C. 272, 275, 415 S.E.2d 716, 717 (1992)
(granting new trial when prospective jurors excused after
unrecorded bench conferences and record was silent, thus
preventing a determination that the error was harmless); State v.
McCarver, 329 N.C. 259, 260-61, 404 S.E.2d 821, 821-22 (1991)
(holding that the excusal of prospective jurors following
unrecorded bench conferences “in the discretion of the Court and
for good cause shown” was not sufficient to prove that the error
was harmless beyond a reasonable doubt).
In the case sub judice the substance of the unrecorded
communication with prospective juror Tanner was adequately
revealed in the trial transcript.
The transcript shows that
Tanner was properly excused “[b]ecause he was over sixty-five.”
See N.C.G.S. §§ 9-6(a), 9-6.1 (1986).
Therefore, defendant’s
absence from the trial court’s communication with Tanner was
harmless beyond a reasonable doubt.
Defendant further notes that N.C.G.S. § 15A-1241
requires complete recordation of jury selection in capital
-8trials.
N.C.G.S. § 15A-1241(a) (1997) (“trial judge must require
that the reporter make a true, complete, and accurate record of
all statements from the bench and all other proceedings”).
Thus,
the trial court also erred by failing to record its ex parte
communication with Tanner.
31, 452 S.E.2d at 263.
See State v. Williams, 339 N.C. at
However, for the reasons stated above, we
conclude that this failure was harmless.
As for prospective jurors Gilbert and Mixon, defendant
argues that the record shows that they were also excused off the
record.
We cannot agree since the record does not reflect that
any actions were ever taken by Judge Lanier to excuse Gilbert and
Mixon.
As this Court stated in Adams, defendant bears the burden
of demonstrating error from the record on appeal.
Adams, 335 N.C. at 409, 439 S.E.2d at 764.
State v.
Thus, “defendant must
show from the record that the trial judge examined off the record
prospective jurors other than those named.
It is not enough for
defendant to assert that there may have been other impermissible
ex parte communications.
The record must reveal that such
communications in fact occurred.”
764.
Id. at 409-10, 439 S.E.2d at
Therefore, “whatever incompleteness may exist in the record
precludes defendant from showing that error occurred as to any
[prospective] juror other than those the trial judge excused or
deferred on the record.”
Id. at 410, 439 S.E.2d at 764; see also
State v. Fleming, ___ N.C. ___, ___, 512 S.E.2d 720, 730 (1999)
(finding no harm to defendant where a prospective juror was
erroneously called for voir dire to an already occupied seat and
the record discloses no voir dire of her); State v. James, 321
-9N.C. 676, 686, 365 S.E.2d 579, 585 (1988) (holding that “[w]here
the record is silent upon a particular point, the action of the
trial court will be presumed correct”).
Thus, this assignment of
error is meritless.
Defendant next contends that the trial court erred in
excusing four prospective jurors for cause based on their answers
to death-qualifying questions, thereby denying defendant his
statutory and constitutional rights.
Defendant argues that
prospective jurors Brenda Rose, Beverly Smith, Melody Tanner, and
Angela Naylor unequivocally stated that they could consider both
the death penalty and life imprisonment as possible penalties
based on the evidence presented; thus, they were improperly
excused for cause based on their responses to the
unconstitutional, hypothetical question, “[C]ould you, yourself,
vote to give somebody the death penalty?”
The test for determining when a prospective juror may
be excused for cause is whether his views “would ‘prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’”
Wainwright v.
Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985) (quoting
Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)).
The fact that a prospective juror “voiced general objections to
the death penalty or expressed conscientious or religious
scruples against its infliction” is not sufficient.
Witherspoon
v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85 (1968).
The decision to excuse a prospective juror is within the
discretion of the trial court because “there will be situations
-10where the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially
apply the law.”
Wainwright v. Witt, 469 U.S. at 425-26, 83 L.
Ed. 2d at 852.
First, we note that defendant never objected to the
allegedly unconstitutional, hypothetical question of whether the
prospective juror herself could vote to recommend the death
penalty propounded by the prosecutor in the case of prospective
jurors Rose and Smith, and by the trial court in the case of
prospective jurors Tanner and Naylor.
Since none of the
prospective jurors was actually excused based on her response to
this question, and since “[t]his Court is not required to pass
upon a constitutional issue unless it affirmatively appears that
the issue was raised and determined in the trial Court,” State v.
Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985), we need not
address defendant’s allegation that this question is
unconstitutional.
Next, applying the Wainwright standard set out above,
we conclude that the trial court did not abuse its discretion in
excusing these prospective jurors for cause.
Since all four
prospective jurors clearly demonstrated their inability to render
a verdict in accordance with the laws of the state, the trial
court did not abuse its discretion by granting the State’s
for-cause challenges.
See N.C.G.S. § 15A-1212(8) (1997)
(providing that a challenge for cause may be made on the grounds
that, regardless of the facts and circumstances, a juror would be
-11unable to render a verdict in accordance with the laws of North
Carolina).
When the prosecutor asked Rose whether her “feelings
about the death penalty would prevent or substantially impair the
performance of [her] duty as a juror in accordance with the
evidence and the law in this case,” she responded, “Probably so.”
The State challenged her for cause, and defendant attempted to
rehabilitate her; however, after watching and listening to the
entire voir dire and then hearing Rose state that she was not
sure if she could follow the court’s instructions, the trial
court determined that “we can belabor this all day and she’s
going to be in the same position.
I’m going to excuse her.”
Thus, we hold that defendant has failed to demonstrate how the
trial court abused its discretion in granting the State’s forcause challenge of Rose.
Prospective juror Smith informed the prosecutor that
she would be unable to set aside her personal feelings about the
death penalty and follow the instructions.
She also told the
trial court that she could not return a recommendation of death
no matter what the evidence or the facts.
Defendant attempted to
rehabilitate her; however, when the prosecutor later asked Smith
whether her “feelings about returning a death penalty verdict
would prevent or substantially impair [her] ability to serve as a
juror in accordance with the evidence and the law in a death
penalty case,” Smith replied, “Yes, sir.”
granted the State’s challenge for cause.
The trial court then
On appeal defendant
contends that he should have been afforded another opportunity to
-12rehabilitate Smith.
We cannot agree.
Defendant never asked the
trial court for another opportunity to question Smith; further,
“defendant is not allowed to rehabilitate a juror who has
expressed unequivocal opposition to the death penalty in response
to questions propounded by the prosecutor and the trial court.”
State v. Cummings, 326 N.C. 298, 307, 389 S.E.2d 66, 71 (1990).
Since Smith unequivocally stated that she could not recommend the
death penalty under any circumstances, we hold that the trial
court did not abuse its discretion in excusing her for cause.
The State challenged prospective juror Tanner after she
indicated that “in no event and under no circumstances could
[she] ever vote to return a death penalty regardless of what the
evidence and the law might be.”
During rehabilitation Tanner
replied that she could set aside her feelings and consider the
death penalty.
Nevertheless, she again told the prosecutor that
her “feelings about the death penalty [would] prevent or
substantially impair the performance of [her] duty as a juror in
accordance with the evidence and the law in this case” and then
told the trial court that she “could not return a recommendation
that the defendant be sentenced to death no matter what the
evidence or the facts were.”
Based on Tanner’s voir dire, we
hold that the trial court properly granted the State’s challenge
for cause.
Finally, defendant contends that prospective juror
Naylor was improperly excused based on her ambivalence and
equivocation regarding the death penalty.
We disagree.
Naylor
stated that she might not be able to recommend a death sentence
-13based on her religious principles and personal feelings and that
these feelings could “prevent or substantially impair the
performance of [her] duty as a juror in accordance with the
evidence and the law in a case where the death penalty is an
issue.”
Although she later indicated that she could consider
both penalties, she then told the trial court that she did not
know whether she could recommend the death penalty.
The trial
court found that Naylor was ambivalent and that “her personal and
religious beliefs would impair, substantially impair her ability
to follow the instructions” and granted the State’s for-cause
challenge.
While the voir dire of this prospective juror may
have indicated her ambivalence toward the death penalty, we hold
that she was properly excused for cause because that testimony
also demonstrated that she would be unable to render a verdict in
accordance with the trial court’s instructions and the laws of
the state.
See State v. Benson, 323 N.C. 318, 323, 372 S.E.2d
517, 520 (1988); State v. Brown, 320 N.C. 179, 189-90, 358 S.E.2d
1, 10, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).
Next, defendant argues that the trial court erred by
permitting the State to “stake out” prospective jurors during
voir dire.
He contends that he was prejudiced by the
prosecutor’s informing prospective jurors that the vehicle into
which defendant discharged his firearm was occupied by his wife
and three small children.
He further contends that the trial
court erred by allowing the prosecutor to inadequately state the
law regarding the felony-murder rule.
-14This Court has repeatedly held that questions which
attempt to “stake out” the jurors and determine what kind of
verdict the jurors would render under a given set of
circumstances are improper.
See State v. Robinson, 339 N.C. 263,
273, 451 S.E.2d 196, 202 (1994), cert. denied, 515 U.S. 1135, 132
L. Ed. 2d 818 (1995).
However, “[t]he nature and extent of the
inquiry made of prospective jurors on voir dire ordinarily rests
within the sound discretion of the trial court.”
State v. Bond,
345 N.C. 1, 17, 478 S.E.2d 163, 171 (1996), cert. denied, ___
U.S. ___, 138 L. Ed. 2d 1022 (1997).
During voir dire in this case, the prosecutor
consistently inquired whether prospective jurors knew or read
anything about defendant’s case; and in doing so the prosecutor
noted that defendant was charged with discharging a firearm into
an occupied vehicle, which at the time was occupied by his wife
and three small children.
At the one instance in which defendant
objected to the mentioning of this uncontested fact, the trial
court found that “the information that [the prosecutor] is
seeking would trigger a memory [by the prospective juror] if she
had any of it and I think that would be as much to [defendant’s]
benefit as to [the State’s].”
We conclude that this is not a
stake-out question, since it does not seek “to discover in
advance what a prospective juror’s decision will be under a
certain state of the evidence.”
State v. Richmond, 347 N.C. 412,
425, 495 S.E.2d 677, 683, cert. denied, ___ U.S. ___, 142 L. Ed.
2d 88 (1998).
Furthermore, defendant failed to object to the
prosecutor’s mention of the fact that defendant’s three children
-15were in the vehicle at the time of the shooting, except during
the voir dire of one prospective juror who was peremptorily
excused by the State; the rule is that when defendant fails to
object during trial, he has waived his right to complain further
on appeal.
See State v. Strickland, 290 N.C. 169, 180, 225
S.E.2d 531, 540 (1976).
Likewise, we find no error in the prosecutor’s outline
of the felony-murder rule.
During voir dire the prosecutor
consistently informed prospective jurors that there are two ways
that an individual can be guilty of first-degree murder:
premeditation and deliberation or felony murder.
The prosecutor
routinely defined felony murder as a killing which occurs during
the commission of a violent felony, such as discharging a firearm
into an occupied vehicle.
Defendant contends that by failing to
inform prospective jurors of the State’s burden of proving that
defendant knew that the vehicle was occupied, the prosecutor
inadequately stated the law.
We disagree.
We note that defendant objected to only two instances
during which the prosecutor discussed felony murder, and in both
instances the prosecutor rephrased the question without
objection.
More important, though, an examination of the
transcript reveals that the prosecutor’s questions do not
constitute inaccurate or inadequate statements of the law.
An
example of a felony for which a person can be found guilty of
first-degree murder under the felony-murder rule is discharging a
firearm into occupied property.
See N.C.G.S. § 14-34.1 (1993).
The prosecutor never intended, nor did defendant request the
-16prosecutor, to list any elements of the offense.
Moreover,
defendant suffered no harm from the prosecutor’s substitution of
“vehicle” for “property” when using the crime as a sample felony.
“[T]he questions certainly were not of such a character that the
trial court’s decision not to intervene ex mero motu constitutes
an abuse of discretion.”
State v. Jones, 347 N.C. 193, 204, 491
S.E.2d 641, 648 (1997).
We hold that these questions did not seek to
predetermine what kind of verdict prospective jurors would
render; rather, they were designed to determine only if
prospective jurors could follow the law and serve as impartial
jurors.
Therefore, defendant’s assignment of error is meritless.
GUILT-INNOCENCE PHASE
Defendant next contends that the trial court erred by
allowing publication to the jury of portrait-style photographs of
each of defendant and the victim’s three children.
Defendant
submits that publication of these three photographs of the
children constituted prejudicial victim-impact evidence and
violated his constitutional rights.
During his testimony the victim’s father identified
four photographs, one of the victim and one each of the victim’s
children; and the prosecutor requested that they be published to
the jury.
Defendant, through his counsel, objected; the trial
court sustained the objection as to the photographs of the
children, but allowed publication of the victim’s photograph, to
which defendant has not assigned error.
When the trial court
sustains an objection, the objecting party has no basis for
-17appeal absent a motion to strike or a request for a curative
instruction.
State v. Barton, 335 N.C. 696, 709-10, 441 S.E.2d
295, 302 (1994).
Although we note that the trial court did later
permit the witness to display the children’s photographs to the
jury from the witness stand, defendant did not object to this
ruling.
In any event, defendant’s contention that the trial
court allowed inadmissible victim-impact evidence is meritless.
The publication of the children’s photographs to the jury, along
with their names and birth dates, did not constitute “testimony
which in any way described how the defendant’s crimes impacted
the victim’s family and friends.”
439 S.E.2d at 565.
State v. Lee, 335 N.C. at 279,
Thus, defendant’s argument is dismissed.
In his next argument, defendant contends that the trial
court erred by admitting hearsay evidence over his objection and
by failing to intervene ex mero motu to prevent improper argument
by the prosecution based upon that evidence.
The challenged evidence concerns the relationship
between defendant and the victim as testified to by seven
witnesses.
In addition to arguing that the testimony was
inadmissible hearsay, defendant argues that the testimony was
irrelevant.
However, this Court has held that when a husband is
charged with the murder of his wife, the State is permitted to
present evidence of “frequent quarrels . . . and ill-treatment
. . . as bearing on intent, malice, motive, premeditation and
deliberation.”
State v. Syriani, 333 N.C. 350, 377, 428 S.E.2d
118, 132, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993);
see also State v. Scott, 343 N.C. 313, 331, 471 S.E.2d 605, 616
-18(1996) (concluding that defendant’s frequent arguments with the
victim were admissible).
Therefore, we reject defendant’s
argument that the evidence was irrelevant.
Defendant first complains about the testimony of Duplin
County Magistrate C.A. Miller.
Miller testified, over objection,
to the victim’s statements regarding defendant’s 23 August 1996
assault on her which resulted in an arrest warrant being issued
against defendant.
Defendant also objected to this arrest
warrant being introduced into evidence and portions of it being
read to the jury.
In addition, defendant objected to the
introduction of, and subsequent testimony regarding, a criminal
summons against defendant for communicating threats to the
victim, a warrant for domestic criminal trespass, and a judgment
showing that defendant pled guilty in both cases.
Defendant is correct that, generally, allegations for
and the contents of a warrant are inadmissible at trial as
hearsay.
See State v. Wilson, 322 N.C. 117, 137, 367 S.E.2d 589,
601 (1988).
However, only general objections were lodged against
the admission into evidence of the State’s exhibits and
succeeding testimony.
Defendant stated the basis only for his
objection to the reading of the domestic trespass warrant, and
the basis proffered was relevancy; but we have already stated
that this evidence was relevant.
Therefore, the objections are
insufficient to preserve this issue for appellate review.
See
State v. Robinson, 339 N.C. at 276, 451 S.E.2d at 204.
Even assuming arguendo that defendant has properly
preserved this issue, he is still not entitled to a new trial.
-19During cross-examination of Miller, defendant elicited
information regarding the assault on 23 August 1996; moreover,
when defendant took the stand, he testified, on both direct and
cross-examination, regarding the information that was contained
in the summons and warrants.
Furthermore, Edna Walker, the
daughter of the victim’s neighbor, later testified at length,
without objection, regarding the 23 August 1996 assault.
“It is
well established that the admission of evidence without objection
waives prior or subsequent objection to the admission of evidence
of a similar character”
State v. Campbell, 296 N.C. 394, 399,
250 S.E.2d 228, 231 (1979); see also State v. Hunt, 325 N.C. 187,
196, 381 S.E.2d 453, 459 (1989); State v. Whitley, 311 N.C. 656,
661, 319 S.E.2d 584, 588 (1984).
Defendant further challenges the admission of hearsay
statements made by the victim to six different witnesses.
witnesses were rebuttal witnesses for the State.
These
They testified
to various domestic violence incidents between defendant and the
victim and were called to, inter alia, rebut defendant’s
assertion that only once had he put his hands on the victim.
During the testimony of Nannette Smith, defendant
objected only once on the grounds of hearsay; and the trial court
ruled that the testimony had “already been testified to.”
At
other times defendant did not object on the grounds of hearsay,
nor has defendant alleged plain error to the admission of other
alleged hearsay evidence during Smith’s testimony.
defendant has waived appellate review of this issue.
Accordingly,
See State
v. Scott, 343 N.C. at 332, 471 S.E.2d at 616 (holding that a
-20question to which defendant did not object at trial or to which
plain error has not been alleged has not been properly preserved
for appellate review).
Next, Ronald Trotter, the victim’s brother, testified.
Although defendant objected on numerous occasions, most of the
objections were sustained or overruled on the basis that the same
or similar evidence had been previously admitted.
We hold that,
as to the remaining hearsay objections, they were properly
overruled by the trial court since the statements reflected the
victim’s state of mind and were therefore admissible under Rule
803(3).
See N.C.G.S. § 8C-1, Rule 803(3) (1992); State v.
Murillo, 349 N.C. 573, 587, 509 S.E.2d 752, 760 (1998).
By
failing to object or allege plain error, defendant has again
waived appellate review to the remainder of Trotter’s testimony.
Next, Delphine Smith testified regarding an incident
when defendant broke the windows in the house, and the flying
glass injured one of defendant's children.
The only applicable
objection defendant made was lodged after Smith had already
responded to the question, and defendant made no motion to strike
the answer.
Thus, defendant has waived the objection, see State
v. Burgin, 313 N.C. 404, 409, 329 S.E.2d 653, 657 (1985), as well
as further appellate review by failing to assign plain error.
Defendant also complains about certain testimony by
Donald Brinson.
However, defendant neither objected to this
question nor alleged plain error; therefore, he has waived this
argument.
616.
See State v. Scott, 343 N.C. at 332, 471 S.E.2d at
Likewise, during direct examination of Gregory Brinson and
-21Edna Walker, defendant failed to object or to assign plain error
to questions regarding alleged hearsay statements made by the
victim to these witnesses.
Accordingly, defendant’s argument has
not been properly preserved for appellate review.
See id.
Finally, defendant argues that the trial court should
have intervened ex mero motu to prevent the prosecution from
making improper arguments to the jury based on the inadmissible
hearsay evidence.
Defendant does not refer this Court to any
particular transcript pages containing allegedly improper remarks
as required by Rule 28(b)(5) of the North Carolina Rules of
Appellate Procedure; however, a review of that portion of the
prosecution’s closing argument based on the allegedly
inadmissible hearsay evidence reveals no gross impropriety
requiring the trial court to intervene ex mero motu.
See State
v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998) (holding
that when defendant fails to object at trial, the standard of
review is whether the argument was so grossly improper that the
trial court erred in failing to intervene ex mero motu).
Moreover, since we have previously rejected defendant’s argument
that the evidence was improperly admitted, the prosecution was
permitted to base its argument upon this evidence.
See State v.
Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468 (stating that
“[c]ounsel may argue the facts in evidence and all reasonable
inferences that may be drawn therefrom”), cert. denied, 488 U.S.
975, 102 L. Ed. 2d 548 (1988).
error is overruled.
Accordingly, this assignment of
-22By other assignments of error, defendant contends that
the trial court violated his constitutional and statutory rights
by denying his motion to suppress, by overruling his objections
to irrelevant and unfairly prejudicial evidence of alleged
threats to others, and by failing to intervene ex mero motu to
prevent improper argument based upon that evidence.
The trial court granted defendant’s motion in limine to
bar testimony as to specific instances of defendant’s alleged
criminal acts against someone other than the victim.
Nonetheless, defendant alleges that the trial court allowed
testimony regarding alleged threats and violent conduct directed
against various members of the victim’s family.
These
assignments of error are deemed waived for failure to comply with
the Rules of Appellate Procedure.
Under Rule 28(d)(1), when the transcript
of proceedings is filed pursuant to Rule
9(c)(2), the appellant must attach as an
appendix to its brief either a verbatim
reproduction of those portions of the
transcript necessary to understand the
question presented or those portions of the
transcript showing the questions and answers
complained of when an assignment of error
involves the admission or exclusion of
evidence. N.C. R. App. P. 28(d)(1)(a),
(d)(1)(b). Alternatively, Rule 28(d)(2)(a)
provides that when the portion of the
transcript necessary to understand the
question presented is reproduced verbatim in
the body of the brief, appendices to the
brief are not required. N.C. R. App. P.
28(d)(2)(a).
State v. Call, 349 N.C. 382, 408, 508 S.E.2d 496, 513 (1998).
As
in Call, defendant cites only various transcript pages and fails
either to attach the pertinent portions of the transcript or to
include a verbatim reproduction in his brief of the specific
-23questions and answers which he wants this Court to review for
error.
See id. at 408-09, 508 S.E.2d at 513.
We acknowledge
that defendant reproduces a portion of the prosecutor’s allegedly
improper jury argument in his brief; however, he fails to advance
any argument or cite any authority regarding any impropriety as
required by the Rules of Appellate Procedure.
P. 28(a), (b)(5).
See N.C. R. App.
Accordingly, these assignments of error have
been waived and are overruled.
Defendant next contends that the trial court erred by
denying his motions to dismiss the charges of discharging a
firearm into an occupied vehicle, to consolidate these charges,
and to set aside the verdict with respect to these charges.
On 28 October 1996 defendant was indicted for four
counts of discharging a firearm into an occupied vehicle.
On
18 July 1997 defendant was indicted for three additional counts
of discharging a firearm into an occupied vehicle.
Although at
trial defendant moved to dismiss all charges at the close of all
the evidence, defendant has abandoned review as to the four
original charges of discharging a firearm into an occupied
vehicle since he makes no argument on those charges in his brief.
N.C. R. App. P. 28(b)(5).
Defendant argues that there was
insufficient evidence of the additional charges to go to the
jury; thus, defendant submits that the trial court erred by
denying his motion to dismiss these three charges.
In ruling on a motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State
and give the State every reasonable inference to be drawn
-24therefrom.
See State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334,
343 (1998).
The State must present substantial evidence of each
element of the offense charged.
See id.
“[T]he trial court
should consider all evidence actually admitted, whether competent
or not, that is favorable to the State.”
State v. Jones, 342
N.C. 523, 540, 467 S.E.2d 12, 23 (1996).
“If there is
substantial evidence--whether direct, circumstantial, or both--to
support a finding that the offense charged has been committed and
that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied,” State v. Locklear, 322 N.C.
349, 358, 368 S.E.2d 377, 383 (1988); however, if the evidence
“is sufficient only to raise a suspicion or conjecture as to
either the commission of the offense or the identity of the
defendant as the perpetrator, the motion to dismiss must be
allowed,” State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720
(1983).
The offense of discharging a firearm into an occupied
vehicle requires, inter alia, that a person willfully or wantonly
discharge a firearm into a vehicle while it is occupied.
N.C.G.S. § 14-34.1 (1993).
See
However, defendant’s sole contention
is that the State presented insufficient evidence to support
seven distinct charges of discharging a firearm into an occupied
vehicle.
Defendant bases this assertion on the fact that
witnesses testified that they heard only four gunshots and that
only four shell casings were recovered at the scene of the crime.
Viewing the evidence in the light most favorable to the
State and drawing all reasonable inferences in its favor, we
-25conclude that substantial evidence exists that defendant
discharged his firearm into the victim’s truck seven times.
The
State’s evidence at trial tended to show the existence of seven
bullet holes in the victim’s vehicle.
There were two bullet
holes in the windshield, one near the middle of the windshield
and one near the edge of the windshield on the passenger’s side;
there was a bullet hole below the windshield on the driver’s side
and one near the headlight on the driver’s side; there was a
bullet hole on the top of the truck’s bed on the driver’s side
and one in the bed of the truck; and the driver’s side door
window was burst, which, based on the evidence, was caused by the
fatal gunshot to the victim.
Defendant’s firearm had the
capacity to hold nine bullets and was empty at the murder scene.
Further, a State’s witness testified that as of four o’clock on
the day of the murder, the truck did not have any bullet holes or
broken glass.
Based on this evidence, we conclude that the trial
court did not err in denying defendant’s motion to dismiss the
three additional charges of discharging a firearm into an
occupied vehicle.
Defendant further argues that the trial court erred by
denying his motion to consolidate these charges.
However, as
discussed above, the evidence tended to show that defendant’s
actions were seven distinct and separate events.
“Each shot,
fired from a pistol, as opposed to a machine gun or other
automatic weapon, required that defendant employ his thought
processes each time he fired the weapon.
Each act was distinct
in time, and each bullet hit the vehicle in a different place.”
-26State v. Rambert, 341 N.C. 173, 176-77, 459 S.E.2d 510, 513
(1995).
Therefore, we conclude that the trial court properly
denied defendant’s motion to consolidate the charges of
discharging a firearm into an occupied vehicle.
Finally, defendant argues that the trial court erred by
denying his motion to set aside the verdict with respect to the
three additional charges.
The scope of this Court’s review on
appeal, however, “is confined to a consideration of those
assignments of error set out in the record on appeal.”
App. P. 10(a).
N.C. R.
Such assignments of error are sufficient only
when they direct “the attention of the appellate court to the
particular error about which the question is made, with clear and
specific record or transcript references.”
10(c)(1).
N.C. R. App. P.
While the assignment of error addressing this argument
in defendant’s brief does contain references to the transcript,
none of these referenced transcript pages indicate that defendant
moved to set aside the verdict; thus, this portion of the
question presented is not properly before this Court.
Defendant next contends that the trial court’s failure
to conduct the jurors to the courtroom following a request by the
jurors constitutes reversible error.
We disagree.
During deliberations at the guilt-innocence phase, the
jury sent a note to the trial court requesting certain items of
evidence.
The trial court, after discussing with both parties
which items were the subject of the request, in its discretion
and with the consent of both parties, granted the jury’s request.
We agree with defendant that the trial court erred by failing to
-27conduct the jury to the courtroom; however, we disagree with
defendant that this error entitles him to a new trial.
N.C.G.S. § 15A-1233(a) mandates that “[i]f the jury
after retiring for deliberation requests a review of certain
testimony or other evidence, the jurors must be conducted to the
courtroom.”
Although he did not object to the failure of the
trial court to conduct the jury to the courtroom, defendant is
not precluded from raising this issue on appeal.
Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).
See State v.
Since “no
instructions were given by the trial court to fewer than all
jurors,” no constitutional violations exist.
State v.
McLaughlin, 320 N.C. 564, 570, 359 S.E.2d 768, 772 (1987); see
also State v. Nelson, 341 N.C. 695, 701, 462 S.E.2d 225, 228
(1995); State v. Ashe, 314 N.C. at 36, 40, 331 S.E.2d at 657,
659.
In order to be entitled to a new trial, defendant must
demonstrate that there is a reasonable possibility that a
different result would have been reached had the trial court’s
error not occurred.
S.E.2d at 772.
State v. McLaughlin, 320 N.C. at 570, 359
Defendant cannot meet this burden.
Not only did
defendant’s counsel agree with the trial court when it
erroneously thought that it had discretion whether to bring the
jury to the courtroom, but there was unanimous agreement among
the State, the defendant, and the trial judge concerning the
items requested by the jury; and the prosecution and defendant
consented to permitting the jury to have those items.
Therefore,
defendant has not met his burden of showing prejudice as a result
of the trial court’s failure to follow the requirements of
-28N.C.G.S. § 15A-1233(a).
In his brief, defendant also contends
that the trial court erred regarding a subsequent jury request
for documents.
However, defendant’s assignment of error contains
no mention of this incident; thus, it is beyond our scope of
review.
See N.C. R. App. P. 10(c)(1), 28(b)(5).
In any event,
the trial court brought the jury back into the courtroom and
followed the statutory requirements of N.C.G.S. § 15A-1233.
We
perceive no prejudice to defendant from the trial court’s
granting of the jury’s subsequent request.
Accordingly, this
assignment of error is overruled.
In his next argument, defendant contends that the trial
court erred by denying his motions for mistrial and by
instructing the jury to continue deliberations despite being
deadlocked.
Defendant argues that the trial court’s coercion of
the jury into reaching a verdict along with the victim’s father’s
comments entitle him to a new trial.
The jury began deliberations around mid-afternoon on
Tuesday, 2 September 1997.
Later that afternoon the jury
requested to see certain exhibits; still later that day the jury
came back into the courtroom to ask a question.
then recessed until 9:00 a.m. Wednesday.
The trial court
During the morning of
3 September 1997, the jury requested to see further exhibits; and
after lunch the jury asked for the charge on first-degree felony
murder and murder based on malice, premeditation, and
deliberation.
Subsequently, the jury sent a note to the trial
court, was conducted back to the courtroom, and the following
discussion occurred:
-29THE COURT: All right. Madame Foreman,
I understand that from your note that you’re
having difficulty in arriving at a verdict.
Is that correct?
FOREPERSON:
Yes, sir.
THE COURT: Is this a difficulty that
you think further deliberations will assist?
In other words, do you think if you all
deliberate more, you can sort of hang this
thing out?
FOREPERSON:
I doubt it.
THE COURT: All right. Well, then
without asking you, you know, exactly what
the verdict that you’re considering are
[sic], what kind of a numerical division do
you have? Don’t tell me which way it is but
I mean five to seven, six to six?
FOREPERSON:
Ten to two.
THE COURT: All right. Well, now,
ladies and gentlemen, to be quite honest with
you, you’ve, you know you’ve deliberated what
I know seems to be a long time for you but
for this type of case, this is not an
ordinately long period of deliberations. But
I’m going to reread you a part of the
instructions that I gave you earlier.
Now, as jurors, you all have [a] duty to
consult with one another and to deliberate
with a view towards reaching an agreement.
If it can be done without violence to
individual judgment. Each of you must decide
the case for yourselves, however. But only
after an impartial consideration on the
evidence with your fellow jurors. In the
course of your deliberation, you should not
hesitate to re-examine your own views and
change your opinion if you’re convinced that
you are in error but none of you should
surrender your honest conviction as to the
weight or effect of the evidence solely for
the purpose of satisfying the opinion of a
fellow juror or . . . solely for the purpose
of returning a verdict. Your verdict should
speak the truth. Your vote should speak your
truth. Now, having said that, I’m going to
ask that you return to the jury room and do a
little bit more deliberating. And, you know,
-30if you can resolve your differences. If you
cannot honestly do it, well, so be it. I
don’t want you to think that I’m trying to
force you into a verdict. That is not the
purpose of the remarks I gave you. Do you
understand that?
. . . .
. . . Well let’s let them deliberate
another thirty minutes or so and then we’ll
take their temperature. You know, I don’t
object to coming, you know coming back
tomorrow. We’ll just have to see.
Since the jury had not reached a verdict, the trial court
recessed for the evening.
On Thursday morning the jury was escorted into the
courtroom; but before the trial court had an opportunity to ask
the jury to resume deliberations, defendant interrupted.
THE COURT: All right. Well, I’m going
to ask that you return to your jury room and
resume your deliberations. Remember the
instructions -MR. NOBLES [defendant]: I’m not going
to be quite [sic]. Okay. Judge -MR. ANDREWS [prosecutor]:
MR. NOBLES:
Your Honor --
I’m not going to sit idly
by -THE COURT: Sir, you’re going to be
quiet as long as the jury’s present.
MR. NOBLES: And, let them railroad me
into a death sentence. Okay. I mean I have
the stuff right here -- and I’m
THE COURT: Take the jury -- take the
jury, take the jury out.
MR. NOBLES: I’m not going to do it.
I’m not going to let them sit here and
railroad me into a death sentence.
(Jury is returning to the jury room.)
-31MR. TROTTER [victim’s father]:
not being railroaded. You -THE COURT:
THE BAILIFF:
Sir, you sit.
You’re
You sit down.
MR. NOBLES:
You could be put in jail.
THE BAILIFF:
God have mercy.
Calm down.
MR. NOBLES: I pray for you and you seek
my end. God have mercy.
(Defense counsel trying to speak with
defendant.)
MR. NOBLES:
THE BAILIFF:
I’m not going to hush.
Get some backup.
(JURY IS OUT OF THE COURTROOM)
Out of the presence of the jury, defendant expressed his thoughts
to the trial court; and the jury was again brought back to the
courtroom, only to be interrupted again by defendant.
(Jury returns to the courtroom.)
MR. NOBLES: The fact that I was
handcuffed to a floor for eleven hours and
then they said up there I never gave a
statement.
THE COURT:
the jury is in.
Sir, you will be quiet while
MR. NOBLES: It’s a railroad job.
That’s all it is.
Following this exchange the jury was reinstructed by the trial
court and sent back for deliberations.
Defense counsel then
moved for a mistrial based on the jury’s failure to reach a
verdict after almost ten hours of deliberations over three days
and the courtroom outburst precipitated by defendant, which
included a response from the audience.
The trial court denied
-32the motion.
When the court next reconvened the jury in the
courtroom, the following colloquy ensued:
THE COURT: All right. Madame Foreman,
I am now inquiring as how you folks are
coming towards reaching a verdict. Are you
still where you started?
FOREMAN:
Eleven to one.
THE COURT: Okay. Now, do you think
further deliberations would enable you to
reach a verdict?
FOREMAN:
It’s kind of tough to say.
THE COURT:
What about the rest of you?
JUROR NUMBER TEN:
Possibly.
THE COURT: You know, like I say, we’re
not trying to force you into any kind of
verdict nor are we trying to make anybody
forget or overrule their own deeply held
convictions. And, the reason for my inquiry
is you know to as to whether we do need to
resume deliberations or not.
JUROR NUMBER NINE:
to resume.
We do.
We do need
The trial court then recessed for lunch, and at 2:00 p.m. the
jury resumed deliberations.
its verdicts.
Shortly thereafter the jury returned
At defendant’s request the jurors were polled, and
all assented to the verdicts.
In all the jury had deliberated
approximately eleven hours, spanning three days.
In determining whether the trial court coerced a
verdict by the jury, this Court must consider the totality of the
circumstances.
See State v. Porter, 340 N.C. 320, 335, 457
S.E.2d 716, 723 (1995).
“An inquiry as to a division, without
asking which votes were for conviction or acquittal, is not
inherently coercive.
Without more, it is not a violation of the
-33defendant’s right to a jury trial.”
462, 464, 368 S.E.2d 607, 608 (1988).
State v. Beaver, 322 N.C.
Some of the factors to be
considered include whether the trial court conveyed the
impression that it was irritated with the jury for not reaching a
verdict, whether the trial court intimated that it would hold the
jury until it reached a verdict, and whether the trial court told
the jury that a retrial would burden the court system.
See id.
The record demonstrates that the trial court did none of these
things.
The fact that the jury deliberations lasted nearly
eleven hours and spanned three days does not show that the trial
court coerced a verdict.
See id. at 465, 368 S.E.2d at 609.
Likewise, we find no merit to defendant’s argument that
the trial court erred in denying his motion for mistrial due to
deadlock.
“Whether to grant a motion for mistrial is within the
sound discretion of the trial court, and its ruling will not be
disturbed on appeal unless it is so clearly erroneous as to
amount to a manifest abuse of discretion.”
State v. McCarver,
341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517
U.S. 1110, 134 L. Ed. 2d 482 (1996).
After discovering that the
jury was having difficulty reaching a verdict, the transcript
reveals that the trial court properly reinstructed the jury as to
its duty under N.C.G.S. § 15A-1235(b) to consult with one
another, to decide for oneself, to reexamine one’s views if
necessary, but not to surrender one’s honest convictions.
The
trial court then asked the jury to continue deliberating, and
soon thereafter the court recessed for the evening.
The next
morning the jury continued deliberating, and shortly before lunch
-34the jury informed the trial court that further deliberations
might be worthwhile.
Not long after the lunch recess, the jury
reached it verdicts.
The statements of the jurors and their subsequent
actions validate the trial court’s conclusion that further
deliberations would be worthwhile.
When the totality of the
circumstances are considered, and giving proper deference to the
trial court’s discretion, we conclude that the trial court did
not abuse its discretion by denying defendant’s motion for
mistrial.
724-25.
See State v. Porter, 340 N.C. at 337, 457 S.E.2d at
The decision to convict a person of first-degree murder
and six counts of discharging a firearm into an occupied vehicle
is a serious matter; considerable deliberation is warranted.
Further, defendant argues that the remarks by the
victim’s father from the audience during jury deliberations
prejudiced his case.
According to N.C.G.S. § 15A-1061, “[t]he
judge must declare a mistrial upon the defendant’s motion if
there occurs during the trial an error or legal defect in the
proceedings, or conduct inside or outside the courtroom,
resulting in substantial and irreparable prejudice to the
defendant’s case.”
The jury heard one statement from the
victim’s father in response to defendant’s contention that he was
being railroaded; defendant failed to request any type of
curative instruction.
We hold that the outburst was not so
prejudicial to defendant as to render the denial of the motion
for mistrial a manifest abuse of discretion reversible on appeal.
See State v. Ward, 338 N.C. 64, 93, 449 S.E.2d, 709, 724 (1994),
-35cert. denied, 514 U.S. 1134, 131 L. Ed. 2d 1013 (1995).
Furthermore, we find no merit to defendant’s contention that the
trial court violated its statutory duty to make a true, complete,
and accurate record of his trial.
See N.C.G.S. § 15A-1241.
Defendant’s assignments of error are overruled.
Next, defendant contends that the trial court erred by
denying his motion to repoll a hesitant juror individually and
his alternative motion to repoll the entire jury.
Defendant
argues that juror Edith Pope had difficulty assenting to the
guilty verdict during the jury poll and that the denial of his
motions to repoll entitles him to a new trial.
We disagree.
The transcript reveals that during the polling of the
jury, juror Pope did not respond for a few seconds after being
asked, “Is this still your verdict?
thereto?”
Do you still assent
She then responded, “Yes.”
Following the jury poll,
defendant requested that juror Pope “be polled individually and
outside the presence of the other jurors.”
The trial court
denied the motion, but allowed defendant until Monday morning to
present authority for his request to individually repoll juror
Pope outside the presence of the other jurors.
At trial and in his brief before this Court, defendant
failed to cite any authority or put forth any argument in support
of his motion to have juror Pope polled individually and outside
the presence of the other jurors.
deemed abandoned.
As such, this contention is
See State v. Locklear, 349 N.C. 118, 165, 505
S.E.2d 277, 305 (1998) (holding that, pursuant to N.C. R. App. P.
28(b)(5), assignments of error not supported by reason, argument,
-36or authority will be taken as abandoned), cert. denied, ___ U.S.
___, ___ L. Ed. 2d ___ (Apr. 19, 1999) (No. 98-8310).
Moreover, defendant also waived his right to repoll the
entire jury.
N.C.G.S. § 15A-1238 grants defendant the right to
have the jury polled before the jury has dispersed.
In this
case, the jury was polled, defendant’s request to have juror Pope
repolled individually and outside the presence of the other
jurors was denied, and the court was recessed for the weekend.
After being dispersed for the weekend, defendant made his
alternative motion to repoll the entire jury on Monday morning.
Defendant waived his right to repoll the jury by failing to make
a timely motion.
See State v. Black, 328 N.C. 191, 198, 400
S.E.2d 398, 403 (1991) (holding that giving the jury a thirtyminute break means the jury has been “dispersed” within the
meaning of N.C.G.S. § 15A-1238).
Further, the record does not
support defendant’s intimation that the trial court did not
accept the verdict and that the verdict was not final.
This
assignment of error is without merit.
By his next contention defendant argues that the trial
court failed to exercise discretion or abused its discretion in
excusing juror Jodie Williams for hardship following the verdict
in the guilt-innocence phase and prior to the sentencing
proceeding of his trial.
After completion of the guilt-innocence phase, juror
Williams, who was pregnant, gave the trial court a note from her
physician that she needed to be excused from jury duty on account
of stress.
The trial judge informed the parties that he did not
-37know if we have “a whole lot of choice.”
After juror Williams
indicated that her physician told her that jury duty could cause
problems with her pregnancy, the trial judge excused her for
medical reasons, noting, “Well, I don’t see that I have much
choice, gentlemen.”
Defendant objected for the record.
First, defendant contends that the trial court failed
to exercise discretion in excusing juror Williams since the
record reveals that it repeatedly stated that it had “no choice”
regarding juror Williams’ request.
We disagree.
N.C.G.S. §§
15A-1215(a) and 15A-2000(a)(2) provide that an alternate juror
may replace any juror who “dies, becomes incapacitated or
disqualified, or is discharged for any reason” before the jury
begins its deliberations on the issue of penalty.
court never stated that it had “no choice.”
The trial
Instead, given juror
Williams’ medical condition, the trial court determined that it
did not have “much choice” or “a whole lot of choice.”
We hold
that the record demonstrates that the trial court did exercise
its discretion in excusing juror Williams.
Next, defendant argues that the trial court abused its
discretion by excusing juror Williams.
As previously stated,
N.C.G.S. § 15A-2000(a)(2) expressly permits the replacement of a
juror after the guilt-innocence phase and prior to the sentencing
proceeding.
Moreover, in State v. Nelson, 298 N.C. 573, 593, 260
S.E.2d 629, 644 (1979), cert. denied, 446 U.S. 929, 64 L. Ed. 2d
282 (1980), we held that the trial court “has broad discretion in
supervising the selection of the jury . . . [and that i]t is
within the trial court’s discretion to excuse a juror and
-38substitute an alternate at any time before final submission of
the case to the jury panel.”
Thus, we detect no abuse of
discretion from the trial court’s decision to excuse a juror
whose physician had determined that jury duty could cause
complications with her pregnancy.
See State v. Holden, 321 N.C.
125, 151-52, 362 S.E.2d 513, 530 (1987) (holding no abuse of
discretion where trial court found that it had “no alternative
but to dismiss” juror after guilt phase upon learning that juror
would not impose the death sentence under any circumstances),
cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988); see also
State v. Davis, 325 N.C. 607, 628, 386 S.E.2d 418, 429 (1989)
(ascertaining no abuse of discretion in judge’s decision to
replace juror who had child-care problems, after both parties had
presented all their evidence in guilt-innocence phase), cert.
denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990); State v.
McLaughlin, 323 N.C. 68, 101, 372 S.E.2d 49, 70 (1988) (failing
to find an abuse of discretion where juror excused between guiltinnocence phase and sentencing proceeding was distraught and
highly emotional), cert. denied, 494 U.S. 1021, 108 L. Ed. 2d 601
(1990).
Finally, defendant appears to argue that the excusal of
juror Williams was arbitrary since the trial court refused to
excuse juror Jonathan Stegal when he presented a note from his
physician that jury duty could cause medical complications.
However, the record reveals that the trial court took steps to
ensure that being on the panel would not create any serious
health problems to juror Stegal; and since defendant did not
-39object to juror Stegal remaining on the panel, it can only be
assumed that juror Stegal was not at medical risk.
Further,
defendant has not assigned as error the failure to excuse juror
Stegal; therefore, any argument related to this issue is deemed
abandoned.
See N.C. R. App. P. 28(b)(5).
Thus, we find no merit
to defendant’s argument.
SENTENCING PROCEEDING
In another assignment of error, defendant contends that
the trial court erroneously instructed the jury regarding one of
the aggravating circumstances submitted.
Defendant argues that
the trial court’s instruction relieved the State of its burden to
prove each element of the (e)(10) aggravating circumstance, that
“[t]he defendant knowingly created a great risk of death to more
than one person by means of a weapon or device which would
normally be hazardous to the lives of more than one person.”
N.C.G.S. § 15A-2000(e)(10) (1997).
Defendant did not object to these instructions at
trial; our review, therefore, is limited to review for plain
error.
See N.C. R. App. P. 10(c)(4).
Although in his assignment
of error he “specifically and distinctly contended” pursuant to
Rule 10(c)(4) of the Rules of Appellate Procedure that the error
amounted to plain error, defendant failed to argue in his brief
that the trial court’s instruction amounted to plain error.
N.C. R. App. P. 28(a), (b)(5).
See
Accordingly, defendant has waived
appellate review of this assignment of error.
See State v. King,
342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995).
Nevertheless, we
elect in our discretion under Rule 2 of the North Carolina Rules
-40of Appellate Procedure to review defendant's contention based on
plain error.
See State v. Williams, 350 N.C. 1, 10, 510 S.E.2d
626, 633 (1999); State v. Adams, 347 N.C. 48, 62, 490 S.E.2d 220,
227 (1997), cert. denied, ___ U.S. ___, 139 L. Ed. 2d 878 (1998);
State v. Holden, 346 N.C. 404, 434-35, 488 S.E.2d 514, 530-31
(1997), cert. denied, ___ U.S. ___, 140 L. Ed. 2d 132 (1998).
“In order to rise to the level of plain error, the error in the
trial court’s instructions must be so fundamental that (i) absent
the error, the jury probably would have reached a different
verdict; or (ii) the error would constitute a miscarriage of
justice if not corrected.”
State v. Holden, 346 N.C. at 435, 488
S.E.2d at 531.
During the capital sentencing proceeding, the trial
court instructed the jury regarding the (e)(10) aggravating
circumstance as follows:
The second aggravating circumstance
which you may consider is did the defendant
knowingly create a great risk of death to
more than one person by means of a weapon
which would normally be hazardous to the
lives of more than one person? A defendant
does so, if, at the time he kills he is using
a weapon and the weapon would normally be
hazardous to the lives of more than one
person, and that the defendant uses it in
such a way as to create a risk of death to
more than one person and the risk is great
and the defendant knows that he is thereby
creating such a risk. I instruct you that a
Lorcin 380 caliber semi-automatic pistol is a
weapon which would normally be hazardous to
the lives of more than one person. If you
find from the evidence beyond a reasonable
doubt that when the defendant killed the
victim he was using a weapon and that this
weapon would normally be hazardous to the
lives of more than one person and that the
defendant used the weapon and thereby created
a risk of death to more than one person and
-41that the risk was great and that the
defendant knew that he was thereby creating
such a great risk, you would find this
aggravating circumstance and would so
indicate by having your foreperson write,
“Yes,” in the space after this aggravating
circumstance on the “Issues and
Recommendation” form. If you do not so find,
or have a reasonable doubt as to one or more
of these things, you will not find this
aggravating circumstance, and will so
indicate by having your foreperson write,
“No,” in that space.
Defendant relies on State v. Davis, 349 N.C. 1, 506
S.E.2d 455 (1998), in support of his position that the trial
court’s instructions relieved the State of its burden to prove
each and every element of the (e)(10) aggravating circumstance.
See State v. White, 300 N.C. 494, 499, 268 S.E.2d 481, 485 (1980)
(holding that principles of due process require the State to
prove beyond a reasonable doubt every essential element of the
charged crime) (citing Mullaney v. Wilbur, 421 U.S. 684, 44 L.
Ed. 2d 508 (1975)).
We agree.
In Davis this Court held that “the jury must determine
whether the weapon in its normal use is hazardous to the lives of
more than one person.”
S.E.2d at 481.
State v. Davis, 349 N.C. at 48-49, 506
However, in the case sub judice the trial court’s
instruction that “a Lorcin 380 caliber semi-automatic pistol is a
weapon which would normally be hazardous to the lives of more
than one person” effectively took from the jury’s consideration
whether the weapon used in this case is normally hazardous to the
lives of more than one person.
We conclude that this error
relieved the State of its burden to prove this element of the
aggravating circumstance in violation of due process principles;
-42further, the trial court’s instructions constituted plain error.
Accordingly, defendant is entitled to a new capital sentencing
proceeding.
We now address one further issue raised by the parties
since it is likely to arise again at defendant’s new sentencing
hearing.
Defendant contends that the trial court erroneously
overruled his objection to the prosecution’s improper jury
argument during the sentencing proceeding.
During his jury
argument the prosecutor, in an attempt to rebut defendant’s
mitigating circumstances related to defendant’s home environment,
argued as follows:
Who might be the best person in the world to
testify about his home situation? His
mother, who lives out there on Paul Ed Dail
Road. She wouldn’t even come up here.
MR. HALL [defense counsel]:
THE COURT:
Objection.
Well, --
MR. ANDREWS [prosecutor]:
it, Your Honor.
THE COURT:
Okay.
I’ll rephrase
Please do.
MR. ANDREWS: She didn’t even come up
here to testify -MR. HALL:
Objection.
MR. ANDREWS:
THE COURT:
On his behalf.
Overruled at this point.
MR. ANDREWS: His own mother. Does that
say something to you about whether or not
these flimsy mitigating circumstances are
really true or not?
Thus, the prosecution left the jury to infer that had
defendant’s mother testified, it would not have been beneficial
-43to her son’s case.
Although the record is silent as to the
reasons why defendant’s mother did not testify, extenuating
circumstances appear to have existed.
In any event, the
insinuation made by the prosecutor was not supported by the
record.
It is fair to say that the average jury,
in a greater or less[er] degree, has
confidence that these obligations [of
fairness], which so plainly rest upon the
prosecuting attorney, will be faithfully
observed. Consequently, improper
suggestions, insinuations, and, especially,
assertions of personal knowledge are apt to
carry much weight against the accused when
they should properly carry none.
Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 1321
(1935).
Thus, defendant suffered prejudice when the trial court
erroneously overruled his objection to the prosecutor’s
impermissible line of argument.
We do not pass on defendant’s other assignments of
error as the questions they pose may not arise at a new
sentencing proceeding.
We conclude that the guilt-innocence
phase of defendant’s trial was free from prejudicial error.
However, we also conclude that the trial court committed
reversible error during the sentencing proceeding by erroneously
instructing the jury regarding the (e)(10) aggravating
circumstance.
Therefore, we vacate defendant’s death sentence
and remand for a new capital sentencing proceeding.
NO ERROR IN GUILT-INNOCENCE PHASE; DEATH SENTENCE
VACATED; REMANDED FOR NEW CAPITAL SENTENCING PROCEEDING.
