State v. Bowie

456 S.E.2d 771 (1995)

340 N.C. 199

STATE of North Carolina v. Nathan Wayne BOWIE. STATE of North Carolina v. William Barfield BOWIE.

No. 50A93.

Supreme Court of North Carolina.

May 5, 1995.

*773 Michael F. Easley, Atty. Gen. by William B. Crumpler, Associate Atty. Gen. and Joan Herre Byers, Special Deputy Atty. Gen., for State.

W. Thomas Portwood, Jr., Hickory, for defendant-appellant Nathan Wayne Bowie.

Robert W. Adams, Hickory, for defendant-appellant William Barfield Bowie.

WEBB, Justice.

The defendant Nathan Bowie first assigns error to the court's failure to submit to the jury the statutory mitigating circumstance "[t]he age of the defendant at the time of the crime." N.C.G.S. § 15A-2000(f)(7) (Supp.1994). Nathan Bowie was twenty years of age when the crime was committed. We have held that chronological age is not the determinative factor with regard to this mitigating circumstance. State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983). The defendant's immaturity, youthfulness, or lack of emotional or intellectual development at the time of the crime must also be considered. State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), sentence vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990), on remand, 328 N.C. 550, 402 S.E.2d 573, cert. denied, 502 U.S. 876, 112 S. Ct. 216, 116 L. Ed. 2d 174, reh'g denied, 502 U.S. 1001, 112 S. Ct. 627, 116 L. Ed. 2d 648 (1991).

The defendant contends that this case is governed by State v. Turner, 330 N.C. 249, 410 S.E.2d 847 (1991), which holds that the age circumstance should have been submitted to the jury when the evidence showed the twenty-two year old defendant had been neglected and abused as a youth, was reared by a dysfunctional mother, and was raised in a situation in which there was a significant lack of stability and guidance. In this case, Nathan Bowie presented evidence that he was twenty years of age when the crime was committed, that he was illegitimate, and that he lived in an unstable environment until he was twelve years of age. The defendant was placed in a foster home when he was twelve years of age and continued living in the foster home until he finished high school. The defendant says these factors place him within the holding of Turner and he must have a new sentencing hearing.

We do not believe the evidence supports a finding that the defendant's intellectual and emotional development was less than normal. Unlike the defendant in Turner, the defendant Nathan Bowie was placed in a foster home when he was twelve years of age. He then developed at a normal rate. He graduated from high school and took classes at a community college. He related well to other students and had many friends. His teachers, coaches, and principal testified that he was polite, cooperative, and able to handle criticism and follow the rules. His social worker found him trustworthy enough that she lent him $2,000 to purchase a truck for which he regularly made payments.

We believe this case is more like State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986), in which the defendant's foster parents testified that in their opinion the defendant was emotionally immature for his age, which was twenty-three. The foster parents, with whom the defendant had lived for two years, based their opinions on the defendant's bedwetting, emotional behavior, and *774 being fired from his first job. The foster parents also testified to his normal physical and intellectual development and his level of experience. We held that the evidence did not require the court to submit this circumstance. The evidence in this case did not show that the defendant Nathan Bowie had not developed normally mentally or emotionally.

This assignment of error is overruled.

The defendant William Bowie assigns error to the court's denial of his motion for a psychiatric examination. He contends that the denial of this motion prevented his counsel from adequately representing him at the trial. He argues that it also prevented him from presenting evidence to the jury in regard to the mitigating circumstances "[t]he capital felony was committed while the defendant was under the influence of mental or emotional disturbance" and "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired." N.C.G.S. § 15A-2000(f)(2) and (6).

The defendant William Bowie bases this assignment of error on a motion his attorney made one month before the commencement of the trial. His attorney asked in the motion that the defendant be examined to determine whether he was competent to stand trial. He did not set forth any conduct by the defendant that led him to make the motion.

N.C.G.S. § 15A-1002(a) provides that when a motion is made which questions a defendant's ability to proceed, the "motion shall detail the specific conduct that leads the moving party to question the defendant's capacity to proceed." N.C.G.S. § 15A-1002(a) (1988). We cannot hold that it was error to deny this motion when nothing was shown to the court as to why the motion should have been granted.

This assignment of error is overruled.

The third assignment of error pertains to both Nathan Bowie and William Bowie. The defendants contend that the trial court erroneously denied their request for a jury instruction on voluntary manslaughter. The court in this case submitted to the jury possible verdicts of first-degree murder, second-degree murder, and not guilty. The jury convicted the defendants of first-degree murder. "When the jury is instructed on possible verdicts for first-degree murder and second-degree murder and the jury convicts on the basis of first-degree murder, any failure to instruct on a possible verdict for manslaughter cannot be harmful to the defendant." State v. Ginyard, 334 N.C. 155, 160, 431 S.E.2d 11, 14 (1993); accord State v. Shoemaker, 334 N.C. 252, 270-71, 432 S.E.2d 314, 323-24 (1993). Even if there was sufficient evidence to support an instruction on voluntary manslaughter, which we do not decide, in light of the jury's verdict, the trial court's failure to give the instruction is harmless error.

This assignment of error is overruled.

The defendants next assign error to the admission of certain testimony by Sgt. Dan Carlson, an investigating officer with the City of Hickory Police Department. Sgt. Carlson testified to his inability to find the defendant William Bowie's sister Rochelle Bowie. This was done in order to have her declared unavailable as a witness so that her statement could be read to the jury.

Sgt. Carlson testified that in his search for Rochelle Bowie he went to the home of her mother, Ernestine Bowie, in Philadelphia, Pennsylvania. The following colloquy then occurred:

Q. After you weren't able to locate Rochelle Bowie, what, if anything, did you do? A. We asked Ernestine Bowie if she knew where Rochelle Bowie was and she MR. CUMMINGS: OBJECT. MR. PORTWOOD: OBJECT. THE COURT: SUSTAINED as to what she may have said. MR. PARKER: That would be offered for the truth of the matter, not THE COURT: All right, sir. Q. What did she say? MR. CUMMINGS: OBJECT. MR. PORTWOOD: OBJECT. THE COURT: Answer, sir. *775 A. Ernestine Bowie advised us that Rochelle Bowie had moved out Saturday prior to us arriving there and that she had moved in with a girlfriend. We had asked her what the girlfriend's name was. Ernestine Bowie advised us that she did not know the girlfriend's name, telephone number, or address as to where she was.

This testimony by Sgt. Carlson as to what Ernestine Bowie told him was admissible to prove the difficulty of finding Rochelle Bowie. When used for this purpose it was not hearsay. N.C.G.S. § 8C-1, Rule 801(c) (1992). The defendant contends that because the prosecuting attorney said this testimony was "offered for the truth of the matter," we should treat this statement as if it is hearsay and determine whether it is admissible as an exception to the hearsay rule.

This statement by the prosecuting attorney, which may have been a lapsus linguae, does not convert nonhearsay testimony to hearsay testimony. In any event, the testimony of Sgt. Carlson was so peripheral to the case that its admission could not have prejudiced the defendants.

This assignment of error is overruled.

The defendants next assign error to the admission of hearsay testimony in the form of a statement made by Rochelle Bowie to the investigating officers. The State offered this testimony as an exception to the hearsay rule allowed under N.C.G.S. § 8C-1, Rule 804(b)(5). The defendants contend that the finding by the superior court that the witness was unavailable was not supported by the evidence. Rule 804(a)(5) provides that a witness is unavailable if "the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means." N.C.G.S. § 8C-1, Rule 804(a)(5) (1992).

The evidence in this case showed that Rochelle Bowie made a statement to the officers concerning the events in regard to the crimes. She then moved to Philadelphia. Several weeks before the trial, the prosecutor filed a petition with the court pursuant to N.C.G.S. § 15A-813, the statute that governs summoning out-of-state witnesses to testify. Judge Ferrell entered an order, which included a recommendation, pursuant to the provisions of the statute, that Rochelle Bowie be taken into custody and delivered to a North Carolina officer to assure her attendance at the trial. As a result of this recommendation, rather than attempting to serve Ms. Bowie well in advance of the trial, Sgt. Carlson went to Philadelphia a few days before the commencement of the trial. Sgt. Carlson, accompanied by an officer of the Philadelphia Police Department, went to the address they had been given for Rochelle Bowie. Ms. Bowie's mother, Ernestine Bowie, told the officers that Rochelle had moved and that she did not know her daughter's new address or telephone number. The officers searched the house but could not find Rochelle Bowie.

The superior court could conclude from the above evidence that Rochelle Bowie was absent from the trial and that the State was unable to secure her presence by process or other reasonable means. This supports the finding that the witness was unavailable.

This assignment of error is overruled.

The defendant William Bowie next assigns error to the admission into evidence of a confession he made to Detectives Michael Cohen and James Alexander of the Philadelphia Police Department. The defendant objected to the admission of this confession and a voir dire hearing was held out of the presence of the jury.

The evidence at the voir dire hearing showed that the defendant William Bowie was stopped by a police officer in Philadelphia for a traffic violation. The defendant's name was put in a computer which showed he was wanted for questioning in regard to a homicide in North Carolina. The defendant William Bowie was then taken to the police station where he was questioned by Detectives Cohen and Alexander. The defendant was given the Miranda warnings and signed a paper waiving his right to remain silent and to confer with an attorney. The transcript shows that Detective Alexander first questioned William Bowie and then Detective Cohen questioned him. The court found facts consistent with this evidence and concluded that the defendant had waived his *776 rights enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The court ordered that the confession be admitted.

The defendant contends that there was a ten to fifteen minute break between the questioning by Detective Alexander and the questioning by Detective Cohen. He says he should have again been advised of his Miranda rights before the questioning by Detective Cohen. He says the court's findings on the voir dire hearing apply only to the statements taken by Detective Alexander and the statements taken by Detective Cohen should not have been admitted.

We disagree with the defendant's contention that the court's order admitting the confession applied only to the statements taken by Detective Alexander. The court specifically found that the defendant freely and voluntarily made statements to Detective Cohen. The court also referred to the defendant's statement as "State's Exhibit Voir Dire No. 4," which is the entire statement and not merely the first portion.

Each of the two detectives stayed in the interrogation room throughout the questioning of the defendant. There was only one interview. It was not necessary, as defendant William Bowie contends, to advise him for the second time of his Miranda rights when Detective Cohen began his questions. We can assume he had not forgotten them during the interview. State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976).

The defendant argues finally under this assignment of error that the totality of circumstances surrounding the statement, the presence of psychological coercion, and his condition show that his statement to Detective Cohen should not have been admitted. The court found, based on substantial evidence, that no threats or promises induced the defendant to make his statement. The court also found that the defendant was not under the influence of alcohol, was not in need of medical attention and did not request food or beverage. These findings of fact are based on substantial evidence and are binding upon us. They support the conclusion that the confession was not coerced. State v. Greene, 332 N.C. 565, 579, 422 S.E.2d 730, 738 (1992); State v. Richardson, 316 N.C. 594, 598-99, 342 S.E.2d 823, 827 (1986).

This assignment of error is overruled.

The defendant Nathan Bowie next assigns error to the prosecuting attorney's comment during his argument to the jury on Nathan Bowie's failure to testify. The prosecutor made the following remarks:

Mother suffered [an] addiction to drugs, made him go get the drugs for her, and he spent several weeks in a boys' home in Philadelphia while his mother recovered received substance abuse treatment. So what? How did that affect you Nathan? Huh? Did that bother you any? Did you hear anything from him saying how it affected him?

The defense counsel objected. The court sustained the objection and instructed the jury as follows:

Do not consider the statement of counsel as to whether or not you heard him say how it affected him. Do not deliberate on that, members of the jury. Defendant has no obligation to offer any evidence in this regard from himself.

The defendant Nathan Bowie argues that this instruction consisting of only five lines was not sufficient to cure the comment. He relies on State v. Lindsay, 278 N.C. 293, 179 S.E.2d 364 (1971), in which we approved a much longer instruction. The State contends this statement by the prosecuting attorney was not a comment on Nathan Bowie's failure to testify, but was only an argument on the absence of any evidence from the defendant showing how his mother's drug addiction affected him. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). Assuming the argument was a comment on the defendant Nathan Bowie's failure to testify, the court cured any error by its action in sustaining the objection and giving the curative instruction.

In State v. Reid, 334 N.C. 551, 556, 434 S.E.2d 193, 197 (1993), we said a comment by the prosecutor on a defendant's failure to testify may be cured by an instruction from *777 the court that the comment was improper followed by an instruction not to consider the failure of the defendant not to offer himself as a witness. See also State v. McCall, 286 N.C. 472, 487, 212 S.E.2d 132, 141 (1975). The instruction given in this case meets the requirements of Reid and McCall. The instruction not to consider the argument in effect told the jury it was improper. The instruction that he had no obligation to offer evidence from himself told the jury not to consider the failure of the defendant to testify.

This assignment of error is overruled.

We find no error in the trial or sentencing hearing.

Finding no error in the trial, it is our duty to determine (1) whether the record supports the jury's finding of aggravating and mitigating circumstances; (2) whether any of the sentences were imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether any of the sentences of death is excessive or disproportionate to the penalty imposed in similar cases. N.C.G.S. § 15A-2000(d)(2) (1988); State v. Robbins, 319 N.C. 465, 356 S.E.2d 279, cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987). An examination of the record reveals the evidence supports the findings of the aggravating and mitigating circumstances. Neither of the defendants contends otherwise. We also hold that the sentences were not imposed under the influence of passion, prejudice or any other arbitrary factor.

Our next task is to determine whether either of the sentences imposed is excessive or disproportionate to the penalties imposed in similar cases. As to Nathan Bowie, the jury found in both cases two aggravating circumstances: (1) did the defendant kill the victim while he was an aider or abettor of a person who was attempting to kill another person, and (2) was the murder for which he was convicted part of a course of conduct which included other crimes of violence against another person. N.C.G.S. § 15A-2000(e)(5) and (11). In both cases against the defendant William Bowie, the jury found the two aggravating circumstances found in Nathan Bowie's case and found as an additional aggravating circumstance that he had previously been convicted of a felony involving the use or threat of violence. N.C.G.S. § 15A-2000(e)(3).

In the case of Nathan Bowie, fifteen mitigating circumstances were submitted to the jury. One or more jurors found ten of them, including one statutory mitigating circumstance, that the defendant had no significant history of prior criminal activity. N.C.G.S. § 15A-2000(f)(1). In William Bowie's case, one or more jurors found nine of the sixteen mitigating circumstances submitted. None of them were statutory mitigating circumstances.

This Court gives great deference to a jury's recommendation of a death sentence. State v. Quesinberry, 325 N.C. 125, 145, 381 S.E.2d 681, 694 (1989), sentence vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603, on remand, 328 N.C. 288, 401 S.E.2d 632 (1991). In only seven cases have we found a death sentence disproportionate. State v. McCollum, 334 N.C. 208, 240-42, 433 S.E.2d 144, 162-63 (1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2784, 129 L. Ed. 2d 895, reh'g denied, ___ U.S. ___, 115 S. Ct. 26, 129 L. Ed. 2d 924 (1994). In several cases which have characteristics similar to this case, we have affirmed the imposition of the death penalty.

In State v. McHone, 334 N.C. 627, 646, 435 S.E.2d 296, 307 (1993), cert denied, ___ U.S. ___, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994), there were multiple killings. In State v. Gardner, 311 N.C. 489, 514, 319 S.E.2d 591, 607 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369 (1985), the killings were cold-blooded, calculated and senseless. In State v. Gibbs, 335 N.C. 1, 72, 436 S.E.2d 321, 362 (1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2767, 129 L. Ed. 2d 881 (1994), the defendants employed a calculated plan of attack. In State v. Hutchins, 303 N.C. 321, 357, 279 S.E.2d 788, 810 (1981), the defendant's course of conduct amounted to a wanton disregard for human life. In State v. Robinson, 336 N.C. 78, 137, 443 S.E.2d 306, 336 (1994), there was no evidence of remorse by the defendants. All these characteristics are present in this case.

*778 The murders in this case are not as shocking for their brutality or rapacity as are those in many of the cases that come to this Court, but we are impressed with the calculated nature of the killings and the defendants' wanton disregard for the value of human life. The defendants planned the killings over a period of at least nine hours and apparently killed to avenge the loss of some jewelry the victims allegedly had taken from a relative of the defendants. When the killings in this case are compared to those in the cases listed above in which death sentences were imposed, the similarity of the characteristics of the cases convinces us that the penalties imposed in this case were not excessive or disproportionate to the penalties imposed in similar cases, considering the crimes and the defendants.

We hold that the defendants received trials and sentencing hearings free of prejudicial error; that the aggravating circumstances found were supported by the evidence; that the sentences of death were not imposed under the influence of passion, prejudice or any other arbitrary factor; and that the sentences of death are not excessive or disproportionate to the penalties imposed in similar cases.

NO ERROR.

Justices LAKE and ORR did not participate in the consideration or decision of this case.