1. Homicide--first-degree murder--short-form indictment
The trial court did not err in a first-degree murder prosecution by entering judgment on a
short-form indictment. Under State v. Wallace, 351 N.C. 481, the Fourteenth Amendment does
not require a state indictment to list all of the elements or facts which might increase punishment
for a crime.
2. Constitutional Law--right to be present at trial--first-degree murder--excusal of
jurors
A first-degree murder defendant's constitutional right to be present at every stage of his
trial was not violated where jury selection commenced on 27 July; prospective jurors summoned
for that date who had not been called into the courtroom were kept in a separate room; an
additional panel was summoned on 29 July; the court heard in open court requests to be excused;
and the court stated for the record that one juror held over who had called the clerk's office with
an illness in the family would be excused. The trial court's memorialization of the private
communication between the prospective juror, the clerk, and the trial court explained the
circumstances of the communication and the reason for excusing the prospective juror, the
memorialization was neither questioned nor objected to by defendant or his counsel, and the
memorialization disclosed a valid reason for the excusal and that the communication was harmless
beyond a reasonable doubt.
3. Arson--second-degree not submitted--continuous transaction with murder
The trial court did not err in a prosecution for first-degree arson and first-degree murder
by denying defendant's request for second-degree arson to be submitted as a possible verdict
where, during the time between the murder and the arson, defendant and an accomplice disposed
of the murder weapon, burned their bloody clothes, purchased gasoline to ignite the fire at the
victim's house, and set the house on fire. These undisputed facts show that the murder and arson
were so joined by time and circumstances as to be part of one continuous transaction so that the
house was “occupied” when it was set on fire.
4. Arson--prosecutor's argument--continuous transaction--no plain error
There was no plain error in a prosecution for first-degree murder and first-degree arson
where the court did not correct a statement by the prosecutor in her closing argument that the
judge was going to instruct the jury that this was a continuous transaction. Defendant contended
that “continuous transaction” establishes the occupation element for first-degree arson, which had
not been proven; even assuming that the prosecutor misstated the law, the court gave proper
instructions regarding first-degree arson, thereby curing any prejudice.
5. Evidence--defendant's state of mind when giving statement
There was no plain error in a first-degree murder and first-degree arson prosecution where
the trial court allowed an officer to testify to defendant's state of mind when he gave his
statement. In light of defendant's confession and his trial testimony, the officer's testimony
neither constituted a miscarriage of justice nor did it probably cause the jury to reach a different
verdict than it otherwise would have.
Appeal by defendant from judgments entered 11 August 1998 by
Judge William H. Helms in Anson County Superior Court. Heard in
the Court of Appeals 29 March 2000.
Attorney General Michael F. Easley, by Assistant Attorney
General Joan M. Cunningham, for the State.
Appellate Defender Malcom Ray Hunter, Jr., by Assistant
Appellate Defender Anne M. Gomez, for defendant-appellant.
MARTIN, Judge.
Defendant was tried capitally at the 27 July 1998 Criminal
Session of Anson County Superior Court upon bills of indictment
alleging first degree arson, first degree burglary, and first
degree murder. On 10 August 1998, the jury returned verdicts
finding defendant guilty as charged of all offenses; defendant's
first degree murder conviction was based on both premeditation
and deliberation and the felony-murder rule. After a sentencing
proceeding conducted pursuant to G.S. § 15A-2000 et seq., the
trial court entered judgment upon defendant's conviction of first
degree murder, disregarding felony murder as a basis for the
conviction, and sentenced defendant to life imprisonment. The
trial court also entered judgment upon defendant's convictions of
first degree burglary and first degree arson and imposed
consecutive sentences of 82 to 108 months for each offense.
Defendant appeals.
Summarized only to the extent required for an understanding
of the issues raised on appeal, the State's evidence tended to
show that on 3 April 1995, Richard Holder, defendant's brother,
called Andy Weaver (Weaver) and asked Weaver to bring him atwelve gauge shotgun and an SKS assault rifle which Weaver had
been keeping for him. Weaver, accompanied by Donny Carpenter and
defendant, drove to Richard Holder's camper with the guns.
Richard Holder told the three men that he was preparing to return
to Tennessee, where he had previously taken his minor son,
Matthew Holder. Richard Holder believed that his son was being
sexually abused by Jimmy Burris, who was the boyfriend of Richard
Holder's former mother-in-law. Before Richard Holder was able to
leave for Tennessee, however, three police officers arrived to
arrest him for parental kidnaping. Following a brief and
unsuccessful flight attempt, Richard Holder was arrested.
Defendant became enraged that his brother had been arrested,
cursed the police officers and screamed, “[t]hat son of a bitch
(Burris) needs to die for what he did.” After the police left,
Weaver vowed to kill Burris.
Later the same day, after they had consumed two pints of
“Mad Dog 20/20", an alcoholic beverage, Weaver and defendant
began to plan to kill Burris. They bought shells for the SKS
assault rifle and went looking for Burris. When they were unable
to find Burris at his girlfriend's house, defendant and Weaver
drove to Burris' house, arriving at approximately 10:00 p.m.
Weaver knocked on Burris' door, while defendant remained behind
him, concealing the weapon. When Burris answered the door,
Weaver claimed that his car had broken down and asked to use the
telephone. Burris let Weaver into the house, and defendantfollowed him inside. Defendant then uncovered the weapon,
pointed it at Burris, and said, “[y]eah, mother------, you know
what it is, you know what time it is.”
Burris asked if defendant was Chris Holder and tried to grab
the weapon. A struggle ensued, during which defendant struck
Burris in the face several times and Weaver managed to pin him to
the floor. Defendant and Weaver debated whether to cut Burris'
throat with a knife or shoot him with the SKS assault rifle.
Weaver was unable to hold Burris down, however, while defendant
searched for a knife, and defendant returned to the room and
kicked Burris in the face. Defendant handed the rifle to Weaver
and told him to shoot Burris; Weaver returned the weapon to
defendant and told him to shoot Burris. By this time, Burris
managed to get to his feet and pleaded with the men not to kill
him. Defendant pointed the SKS assault rifle at Burris and shot
him in the chest, the force of the blast knocking Burris into an
adjoining bedroom. Weaver ran out of the house while defendant
went into the bedroom and shot Burris five more times. He and
Weaver then fled.
Following the shooting, defendant and Weaver threw the SKS
assault rifle into the Pee Dee River, and they burned the clothes
they had worn at Burris' house. In order to destroy any evidenceat Burris' house that might link them to the murder, defendant
and Weaver decided to burn the house. They filled an antifreeze
container with gasoline and drove back to Burris' house, where
defendant poured the gasoline inside the house and set the house
afire with Burris' body still inside.
On 4 April 1995, SBI Special Agent T. M. Caulder and
Wadesboro Police Detective Charlie Little interviewed defendant
about Burris' murder. Defendant initially denied any
involvement in Burris' death but he contacted police the
following day and, after being advised of his rights and signing
a waiver, gave a statement to Detective Little, Wadesboro Police
Detective Steve Erdmanczyk and SBI Special Agent Mark Isley in
which he admitted his involvement in the murder and provided a
detailed account.
Defendant testified in his own behalf; his testimony was
generally consistent with the statement he had given the
officers, and he explained that he believed Burris had molested
his nephew and that he was angry that the police had arrested
Richard Holder for parental kidnaping. He also testified that
after Richard Holder was arrested, Weaver said repeatedly that
they should kill Burris, that he had attempted to get Richard
released on bond, but was unsuccessful, and that he told the
officers he had killed Burris in order to protect his nephew.
Defendant testified that at the time he gave the statement to the
officers, he had planned to kill himself. Defendant also offered
the testimony of Richard Holder concerning Burris' alleged abuseof Matthew Holder.
I.
The Confrontation Clause of the North Carolina Constitution
guarantees a criminal defendant the right to be present at every
stage of his capital trial, N.C. Const. art. I, § 23; see also
State v. Atkins, 349 N.C. 62, 101, 505 S.E.2d 97, 121 (1998), cert.
denied, 562 U.S. 1147, 143 L.Ed.2d 1036 (1999), and our Supreme
Court has long held that a defendant in a capital case may not
waive his right to be present. State v. Boyd, 332 N.C. 101, 418
S.E.2d 471 (1992). Jury selection is a phase of the trial at which
a capital defendant has a right to be present. State v. Smith, 326
N.C. 792, 392 S.E.2d 362 (1990). Thus, it is error for the trial
court to conduct private unrecorded conversations with prospectivejurors, even in the absence of objection by the defendant. State
v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991). However, the Court
has also recognized that such error does not require a new trial
where the State can show, beyond a reasonable doubt, that such
error was harmless. State v. Lee, 335 N.C. 244, 439 S.E.2d 547,
cert. denied, 513 U.S. 891, 130 L.Ed.2d 162 (1994). “The State may
show that the error was harmless beyond a reasonable doubt where
the transcript reveals the substance of the trial court's
conversation with the juror, or where the trial judge reconstructs
the substance of the conversation on the record.” Id. at 262, 439
S.E.2d at 555.
In Lee, the trial court excused two jurors under circumstances
similar to those in the present case. As the clerk called
prospective jurors to the box, the trial court disclosed, on the
record, that it had excused the jurors, one due to personal illness
and the other due to the illness of a family member. The Court
held the trial court's disclosure revealed the substance of the
communication between the court and the jurors, and that both had
been excused upon proper grounds. Lee at 262-263, 439 S.E.2d at
555-56. Similarly, in State v. Hartman, 344 N.C. 445, 476 S.E.2d
328 (1996), the trial court disclosed on the record that it had
excused a juror who had presented a doctor's note. The defendant
did not object to the court's memorialization of the communication
and the Supreme Court found no reason, therefore, to doubt its
accuracy or completeness. The Court held that the memorialization
showed that the juror had been properly excused for medical reasonsand the trial court's private communication with the juror was
harmless beyond a reasonable doubt.
The trial court's memorialization of the private communication
between the prospective juror, the clerk and the trial court in the
present case explained the circumstances of the communication and
the reason for excusing the prospective juror. The memorialization
was neither questioned nor objected to by defendant or his counsel.
As in Lee and Hartman, the memorialization disclosed that the
prospective juror was excused for a valid reason and that the
communication was harmless beyond a reasonable doubt. This
assignment of error is overruled.
Our Supreme Court has said:
It is well settled that "a defendant is
entitled to have all lesser degrees of
offenses supported by the evidence submitted
to the jury as possible alternative verdicts."
State v. Palmer, 293 N.C. 633, 643-44, 239
S.E.2d 406, 413 (1977). On the other hand,
the trial court need not submit lesser degrees
of a crime to the jury "when the State'sevidence is positive as to each and every
element of the crime charged and there is no
conflicting evidence relating to any element
of the charged crime.
State v. Drumgold, 297 N.C. 267, 271, 254 S.E.2d 531, 533 (1979),
(quoting State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714
(1972)) (emphasis in original). Defendant argues the evidence
would have supported a verdict of second degree arson because a
jury could reasonably have concluded that when defendant burned
Burris' house with Burris' body inside, the house was “unoccupied”
because Burris had been dead for between two and three and a half
hours. In essence, defendant argues that the time span between the
murder and the arson presented a factual issue for the jury to
decide whether the building was "occupied."
In State v. Campbell, 332 N.C. 116, 418 S.E.2d 476 (1992), the
North Carolina Supreme Court applied for the first time the
"continuous transaction doctrine" to a murder-arson situation. In
that case, the court held that "a dwelling is 'occupied' if the
interval between the mortal blow and the arson is short, and the
murder and arson constitute parts of a continuous transaction."
Campbell, 332 N.C. at 122, 418 S.E.2d at 479. The continuous
transaction doctrine was subsequently applied in the case State v.
Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S.
1024, 135 L.Ed.2d 1080 (1996), in which the facts are similar in
important respects to the facts of the present case. In Jaynes,
the defendant and an accomplice murdered the victim inside a mobile
home, drove away from the scene, and then returned to the mobile
home approximately three and a half hours later to burn it. Jaynes, 342 N.C. at 274, 464 S.E.2d at 464. The North Carolina
Supreme Court upheld the defendant's first degree arson conviction,
observing that "given the extent to which the defendant went to
hide the stolen property and the complexity of defendant's criminal
scheme, the murder and arson were 'so joined by time and
circumstances as to be part of one continuous transaction,'
[Campbell, 332 N.C. at 122, 418 S.E.2d at 479] and therefore
support a finding that the dwelling was 'occupied' within the
meaning of N.C.G.S. § 14-58." Id. at 275, 464 S.E.2d at 464.
Based on the reasoning underlying Jaynes, the trial court
correctly denied defendant's request to submit second degree arson
as a possible verdict. During the time which elapsed between the
murder and the arson, defendant took additional actions designed to
further his "criminal scheme," i.e, defendant and Weaver disposed
of the murder weapon, burned their blood-soiled clothes, purchased
gasoline to ignite the fire at Burris' house, and set the house on
fire. As in Jaynes, these undisputed facts show "the murder and
arson were 'so joined by time and circumstances as to be part of
one continuous transaction.'" Id. (quoting Campbell, 332 N.C. at
122, 418 S.E.2d at 479).
Defendant contends that the highlighted sentence constituted an
erroneous statement of law because "continuous transaction"
establishes the "occupation" element for first degree arson, and
the State had not proven the "occupation" element of first degree
arson beyond a reasonable doubt.
As stated in State v. Trull, 349 N.C. 428, 451, 509 S.E.2d
178, 194-95 (1998), cert. denied, ___ U.S. ___, 145 L.E.2d 80
(1996):
The standard of review when a defendant
fails to object at trial is whether the
argument complained of was so grossly improper
that the trial court erred in failing to
intervene ex mero motu. "The impropriety of
the argument must be gross indeed in order for
this Court to hold that a trial judge abused
his discretion in not recognizing and
correcting ex mero motu an argument which
defense counsel apparently did not believe was
prejudicial when he heard it." State v. Hipps,
348 N.C. 377, 411, 501 S.E.2d 625, 645 (1998)
(quoting State v. Johnson, 298 N.C. 355, 369,
259 S.E.2d 752, 761 (1979)). In determining
whether the statement was grossly improper, we
must examine the context in which it was given
and the circumstances to which it refers.
State v. Tyler, 346 N.C. 187, 205, 485 S.E.2d
599, 609, cert. denied, 522 U.S. 1001, 118
S.Ct. 571, 139 L.Ed.2d 411 (1997); State v.
Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709
(1995), cert. denied, 516 U.S. 1148, 116 S.Ct.
1021, 134 L.Ed.2d 100 (1996).
Even assuming, arguendo, that the prosecutor misstated the law, it
was not plain error for the trial court not to intervene ex mero
motu to correct the argument. The trial court gave proper
instructions regarding first degree arson, thereby "cur[ing] any
prejudice to defendant which may have resulted from the alleged
misstatements of law in the prosecutor's arguments." Id. at 452,
509 S.E.2d at 194. Accordingly, this assignment of error is
overruled.
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