1. Confessions and Incriminating Statements--voluntariness--juvenile
The trial court did not err in a double first-degree murder case by denying defendant
juvenile's motion to suppress his confession, because: (1) defendant was advised both orally and
in writing of his rights under Miranda, and the warning fully satisfied the requirements of
N.C.G.S. § 7A-595 (now N.C.G.S. § 7B-2101); and (2) defendant stated he understood his
rights, was willing to waive his rights, and executed a written waiver.
2. Criminal Law--joinder--no abuse of discretion
The trial court did not abuse its discretion in a double first-degree murder case by joining
defendant's case with that of one of his two accomplices under N.C.G.S. § 15A-926(b)(2) even
though parts of defendant's statement were redacted under N.C.G.S. § 15A-927(c)(1)(b),
including the omissions from his statement that defendant was not in the car while his two
accomplices talked, that they were just messing around laughing and stuff, and that at first they
were going to take one of the victims swimming, because: (1) the State's evidence reveals that
defendant had conversations with one accomplice about killing the victim and his father,
defendant accompanied that accomplice to kill the victim, and defendant actively participated in
the murders; and (2) the inclusion of the deleted statements would have actually strengthened the
State's case since they were made during a discussion of how to murder the victims.
3. Confessions and Incriminating Statements--accomplice's redacted confession--
failure to give limiting instruction
The trial court did not violate defendant's rights under the Confrontation Clause in a
double first-degree murder case by failing to instruct the jury that it could use an accomplice's
statement against the accomplice only, because: (1) the State redacted the accomplice's
confession carefully, and the statement retained a natural narrative flow; (2) there are no
indications that the State altered the confession or that defendant was incriminated by the
accomplice's confession; and (3) even if there was error, the error was harmless beyond a
reasonable doubt based on the overwhelming evidence of defendant's guilt including his own
confession.
4. Burglary and Unlawful Breaking or Entering--first-degree burglary--nighttime
The trial court erred by failing to give an instruction on the definition of nighttime for a
first-degree burglary and a new trial must be held on this charge, because: (1) N.C.P.I., Crim.
214.10 fn. 3 provides that the trial judge must instruct the jury on the definition of nighttime if
there is doubt as to whether it was nighttime; and (2) the conflicting evidence was sufficient to
create a jury issue as to whether defendant broke and entered the house during the nighttime.
5. Homicide--first-degree murder--alternative grounds--premeditation and
deliberation--felony murder
Although defendant must receive a new trial on his first-degree burglary conviction and
this charge was one of the grounds under the felony murder rule for defendant's two first-degree
murder convictions, this disposition does not affect defendant's two first-degree murder
convictions because: (1) the jury found defendant guilty of first-degree murder on threealternative grounds; (2) the jury also based its co
nvictions on premeditation and deliberation and
the felony murder rule with the underlying felony of first-degree arson; and (3) either of the
remaining two grounds would be sufficient on their own.
6. Jury--peremptory challenges--excusal of eight African-American jurors--
nondiscriminatory basis--conclusory allegations insufficient to establish prima facie
case
The trial court did not err in a double first-degree murder case by allowing the State to use
peremptory challenges to exclude eight African-American potential jurors and by concluding that
defendant failed to establish a prima facie case of discrimination, because: (1) defendant has
alleged nothing but conclusory allegations of discriminatory conduct and has not cited to any
place in the record where the prosecutor's comments may be interpreted as discriminatory; and
(2) defendant has not argued that the prosecutor struck a disproportionate number of African-
American jurors.
7. Discovery--copies of State's photographs--testing performed by SBI
The trial court did not err in a double first-degree murder case by denying defendant's
request for copies of the State's photographs and for information and data related to testing
performed by the SBI, because: (1) N.C.G.S. § 15A-903(d) requires only that the State make the
photographs available to defendant for inspection and copying, and defendant does not point to
anything in the record to show the State failed to comply with the statute; and (2) any error in
failing to give defendant the information concerning the SBI lab results revealing the presence of
gasoline on most of the items tested was harmless beyond a reasonable doubt based on the
overwhelming evidence of defendant's guilt and defendant's confession that he doused the beds in
gasoline.
8. Criminal Law--prosecutor's argument--propriety of accomplice's confession
The trial court did not abuse its discretion in a double first-degree murder case by allowing
the prosecutor to comment during closing arguments that an accomplice's attorney attempted to
cast doubt upon the accomplice's confession based on the fact that the confession sinks their
client just as surely as an iceberg sunk the Titanic, because: (1) the prosecutor made his argument
in direct response to an argument that the accomplice's confession resulted from unconstitutional
police conduct; (2) the prosecutor did not make a degrading comment about the defendant or his
counsel; and (3) the prosecutor's comments were explicitly directed as a response to the
accomplice's counsel, rather than to defendant's counsel.
9. Criminal Law--trial court's failure to order transcript--no prejudicial error
The trial court did not commit prejudicial error in a double first-degree murder case by
failing to order defendant a transcript of the 24 July motion to suppress hearing, because: (1) the
hearing on the motion to suppress took place approximately one week prior to trial; (2) defendant
had the same counsel for the hearing and trial, and the same judge presided; (3) both counsel and
defendant were present for both proceedings; and (4) a review of the transcripts shows that the
testimony was substantially the same.
10. Accomplices and Accessories--accessory before the fact--jury instruction--no
prejudicial error
The trial court did not commit prejudicial error by reading defendant's name in its
instruction to the jury on accessory before the fact with respect to defendant's accomplice,
because the State presented overwhelming evidence of defendant's guilt.
11. Homicide--first-degree murder--jury instructions--deadly weapon--premeditation
and deliberation
The trial court did not err in a double first-degree murder case by its instructions to the
jury on the definition of a deadly weapon and the definition of premeditation and deliberation,
because the jury charge as a whole was correct and the error and omissions pointed out by
defendant were not prejudicial.
12. Conspiracy--one guilty verdict--judgment on two counts error
The trial court erred by entering judgment on two counts of conspiracy to commit murder
when the jury only returned one guilty verdict as to conspiracy.
Attorney General Michael F. Easley, by Assistant Attorney
General Joan M. Cunningham, for the State.
Bain & McRae, by Alton D. Bain, for the defendant.
EAGLES, Chief Judge.
This appeal arises out of the joint trial and conviction of
defendant and one of his two accomplices for two brutal murders.
The second accomplice was tried and convicted separately.
The State's evidence showed that seventeen year-old defendant
Henry Michael McKeithan participated with Vera Lee (Lee) and Robby
Brewington (Robby) in the murders of Frances and Brian Brewington.
Eighty-two year old Frances was Robby's grandmother and Brian's
great-grandmother. Eight-year-old Brian was Robby's nephew and the
son of Robby's brother Patrick. Robby, Brian and Frances lived
together in Dunn.
The genesis of these murders was an intimate relationship
between Robby and Lee. The couple planned to marry and purchase a
trailer. However, their lack of funds and poor credit preventedthem from fulfilling their dream. In order to obtain the necessary
money, Robby and Lee conceived a plan to kill Brian and Patrick and
collect life insurance benefits on their lives. Accordingly, Robby
fraudulently acquired life insurance policies on Brian and Patrick
by falsifying Patrick's signature. The face value of the policy on
Patrick was $75,000.00 while the policy on Brian was for
$58,552.00.
Shortly after Robby obtained the insurance policies, Lee began
to solicit individuals to kill Brian and Patrick. Her friend Chris
Wilson testified that Lee talked constantly of killing Brian and
harbored great resentment for Frances. At one point, Lee offered
Wilson $10,000 to kill Brian. Lee also attempted to recruit
Wilson's roommate Danielle to participate in the killings.
In mid-May of 1997, Lee approached the defendant. According
to the defendant's statement, Lee offered him $1300.00 to murder
Patrick. The two searched for Patrick on three separate occasions
to commit the crime. Apparently, Lee then became disenchanted with
the idea of killing Patrick and focused her attention on Brian.
Defendant told the SBI that he was hesitant about this idea and had
suggested to her that they kidnap Brian for ransom instead.However, Lee rebuffed defendant's suggestion.
On 1 June 1997, Robby and Lee began to plan the murders.
Robby told Lee to make it look like a robbery, to stab “Grandma”
and Brian and set the house on fire. On 11 June 1997, Robby talked
to Lee on the phone and they finalized plans for that night.
Around midnight, defendant and Lee went to Wilson's apartment. Lee
again began to talk about killing either Brian or Patrick. Lee and
Wilson argued and Lee angrily left the house with the defendant.
After leaving Wilson's apartment, Lee and the defendant drove
past Robby's house honking the horn to wake him up. According to
Robby's statement, he heard the horn at approximately 3:00 a.m.
Upon hearing the car horn, Robby got up and began dressing for
work. He “got (his) Sunday shoes and (his) Sunday best for Brian
and grandma's funeral.” He took these belongings along with the
insurance policies and drove to Hardee World to meet with Lee and
the defendant. While Robby was preparing, the defendant and Lee
were buying two gallon jugs at Winn-Dixie and filling them with
gasoline. In the Hardee World parking lot, Robby placed some of
his belongings in the back of Lee's car.
Lee and the defendant then started back to the Brewington
home. On their way, the two decided that “it would be nice if we
made it look like a burglary, like they had got up and we freaked
out and we stabbed them.” Defendant and Lee parked behind the
Brewington house. Each put on rubber gloves and took a gallon jugof gasoline. The pair entered the house through the back screen
door and went to the bedroom where Brian and Frances both slept.
Once in the bedroom, Lee handed the knife to the defendant and
told him to kill Brian. However, defendant hesitated and told Lee
that he could not do it. Instead he grabbed a jug of gasoline and
began pouring it around the bedroom. When he finished, Lee handed
the defendant another knife and told him to kill “the old lady” and
that she would handle Brian. Lee placed the knife to Brian's throat
waking him up. Brian began to scream awaking Frances. Frances
shrieked, “[w]ho are you” and then began yelling “[o]h, Lord.” Oh
Lord.” Defendant then began to stab Frances repeatedly.
When defendant stopped stabbing Frances, he began to look for
his lighter. Realizing that he had left his lighter outside,
defendant ran to the car. While defendant was outside, Lee ignited
a dishrag in the heater and when the defendant returned, she threw
the lighted rag onto the gasoline. As defendant ran out of the
burning bedroom, he heard Frances scream, “[o]h, help me. Help me.
Oh.” Defendant and Lee raced to the defendant's house where they
burned their clothes and gloves and buried the knife.
On the morning of the murders, Harnett County Sheriff's Deputy
Jerry Edwards was reporting to work at approximately 6:15 a.m.
Edwards saw smoke coming from Frances' residence and called his
dispatch officer to contact the Harnett County Fire Department.
After the firefighters extinguished the fire, officers conducted a
preliminary investigation. The officers concluded that the fire
was deliberately set. The officers based this conclusion on thefollowing factors: (1) the color of the smoke and flames; (2) the
elimination of the appliances and electrical wiring as possible
causes; (3) the “pour pattern” of the gasoline; (4) the odor of
gasoline and (5) the presence of the half full gallon jug of
gasoline.
Detective Billy Wade of the Harnett County Sheriff's
Department, along with SBI Special Agents Gail Beasley and John
Hawthorne, began a criminal investigation that included an
interview with Robby. During the interview, Robby confessed his
involvement and implicated both Lee and the defendant.
On 13 June 1997, Wade and Hawthorne obtained arrest warrants
for defendant and arrested him at his house. Wade read defendant
his Miranda and juvenile rights at that time. Once at the Dunn Law
Enforcement Center, Wade readvised defendant of his rights and
completed the juvenile rights form. Defendant waived his rights
and made a statement admitting his involvement in the murders. A
jury convicted the defendant of two counts of first degree murder,
one count of first degree arson, one count of first degree
burglary, and one count of conspiracy to commit murder. Defendant
received consecutive life sentences for the two murders, and
incarceration for 64-86 months for first degree arson, 64-86 months
for first degree burglary, and 157-198 months for conspiracy to
commit murder. Defendant appeals.
[1]Defendant first assigns error to the trial court's denial
of his motion to suppress his confession. Defendant claims that hedid not knowingly, willingly and voluntarily waive his rights under
G.S. § 7A-595 (1995)(repealed by N.C. Sess. Laws 1998-202 s.5 eff.
July 1 1999), Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694
(1966) and State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996).
The trial court found as a fact that Special Agent Billy Wade
advised defendant both orally and in writing of his rights under
Miranda and G.S. § 7A-595. We note that G.S. § 7A-595 has been
repealed and replaced with G.S. § 7B-2101 (1999) which offers
juvenile defendants similar guarantees effective 1 July 1999. See
S.L. 1998-202 s.6. Defendant stated that he understood his rights,
was willing to waive his rights and executed a written waiver. The
record establishes that Agent Wade read defendant the following
warning:
You have the right to remain silent . . .
Anything you say can be used against you in
court. You have the right to talk to a lawyer
for advice before we ask you any questions and
to have him with you during questioning. If
you cannot afford a lawyer one will be
appointed for you before questioning if you
wish. You have the right to have your parent,
guardian, or custodian with you during
questioning. If you decide to answer questions
now without a lawyer, parent, guardian or
custodian present, you will still have the
right to stop answering questions at any time
until you talk to a lawyer, parent, guardian,
or custodian.
Defendant argues that there is no requirement of indigency or
financial need in order for an attorney to be appointed under the
juvenile statute. Defendant contends that the warning here is
contrary to G.S. § 7A-595's mandate that a juvenile is always
entitled to an attorney regardless of financial stature.Accordingly, defendant contends that because defendant did not know
his rights, defendant could not have knowingly, voluntarily and
willingly waived his rights.
Obedient to State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94
(1998), we hold that the trial court committed no error and that
the warning given fully satisfied the requirements of G.S. § 7A-
595. In Flowers, this Court considered the following warning given
to a juvenile.
You have the right to remain silent. Do you
understand this right? Anything you say can be
and may be used against you. Do you understand
this right? You have the right to have a
parent, guardian, or custodian present during
questioning. Do you understand? You have the
right to talk with a lawyer for advice before
questioning and to have that lawyer with you
during any questioning. If you cannot afford
to hire a lawyer, one will be appointed to
represent you at no cost before any
questioning, if you wish.
Flowers, 128 N.C. App. at 700, 497 S.E.2d at 96. This warning is
nearly identical to the warning given here. While not directly
addressing the arguments advanced here, the Flowers Court
pronounced that “this warning fully satisfied the requirements of
N.C. Gen. Stat. § 7A-595(a) (1995) and Miranda v. Arizona, 384 U.S.
436, 16 L.Ed.2d 694 (1966).” Id.
In State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996), our
Supreme Court considered a case where the arresting officers could
not locate a juvenile rights form before questioning a juvenile
murder suspect. Instead, the officers used an adult Miranda form
and inserted the additional clause, “[d]o you wish to answer
questions without your parents/parent present?” Miller, 344 N.C. at664, 477 S.E.2d at 919. Again, this warning is nearly identi
cal to
the warning given in the instant case. Our Supreme Court upheld
the reading of this warning as sufficient to satisfy both Miranda
and G.S. § 7A-595. Id. at 666, 477 S.E.2d at 921.
In light of these cases, we hold that the warnings here were
sufficient to satisfy G.S. § 7A-595 and Miranda. While we urge law
enforcement agencies to comply literally with the provisions of the
new juvenile interrogation procedures statute, G.S. § 7B-2101
(1999), on this record, we find no error in the denial of the
motion to suppress.
[2]Defendant argues that the trial court erred by joining his
case for trial with defendant Brewington's case. Our State “has a
strong policy of favoring consolidated trials of defendants accused
of collective criminal behavior.” State v. Roope, 130 N.C. App.
356, 364, 503 S.E.2d 118, 124, disc. review denied, 349 N.C. 374,
525 S.E.2d 189 (1998). A trial court's decision on joinder and
severance rests within its discretion and absent an abuse of that
discretion, this Court will not overturn it. Id. at 364-65, 503
S.E.2d at 125. To overturn the trial court's joinder decision, the
defendant must show that joinder has deprived him of a fair trial.
Id. at 365, 503 S.E.2d at 125 (citing State v. Carson, 320 N.C.
328, 335, 357 S.E.2d 662, 666-67 (1987)). Under G.S. § 15A-
926(b)(2)(1999), the trial court may join defendants for trial
a. When each of the defendants is charged with
accountability for each offense; or
b. When even if all of the defendants are not
charged with accountability for each offense,the several offenses charged:
1. Were part of a common scheme or plan; or
2. Were part of the same act or transaction;
or
3. Were so closely connected in time, place,
and occasion that it would be difficult to
separate proof of one charge from proof of the
others.
However,
(1) When a defendant objects to joinder of
charges against two or more defendants for
trial because an out-of-court statement of a
co-defendant makes reference to him but is not
admissible against him, the court must require
the prosecutor to select one of the following
courses:
a. A joint trial at which the statement is not
admitted into evidence; or
b. A joint trial at which the statement is
admitted into evidence only after all
references to the moving defendant have been
effectively deleted so that the statement will
not prejudice him; or
c. A separate trial of the objecting
defendant.
(2) The court, . . . on motion of the
defendant other than under subdivision (1)
above must deny a joinder for trial or grant a
severance of defendants whenever:
a. If before trial, it is found necessary to
protect a defendant's right to a speedy trial,
or it is found necessary to promote a fair
determination of the guilt or innocence of one
or more defendants; or
b. If during trial, upon motion of the
defendant whose trial is to be severed, or
motion of the prosecutor with the consent of
the defendant whose trial is to be severed, it
is found necessary to achieve a fair
determination of the guilt or innocence of
that defendant.
G.S. § 15A-927(c) (1999). This statute substantially codifies the
decision of Bruton v. U.S., 391 U.S. 123, 20 L. Ed. 2d 476 (1968). Here, defendant claims that his statement,
redacted pursuant
to G.S. § 15A-927(c)(1)(b), was inadequate to meet the
constitutional and statutory requirements. According to defendant,
the omissions from his statement distorted his statement and
unfairly magnified his participation in the crimes. Specifically
defendant objects to the omission that he was not in the car at
Hardee World while Brewington and Lee talked. He also objects to
the deletion of his comment that “we were just messing around
laughing and stuff” and that there was only one discussion of the
murders. Further, defendant argues that the statement should not
have excluded his comment that “at first we were going to take
[Brian] swimming.”
In these arguments, defendant ignores the State's evidence
that he had conversations with Lee about killing Patrick and Brian,
that he accompanied Lee to Fayetteville to kill Patrick and that he
actively participated in the murders. Additionally, defendant made
the swimming comment during a discussion of how to murder the
victims. Accordingly, the redaction of these statements did not
prejudice the defendant. Indeed, their inclusion would have
actually strengthened the State's case.
[3]Next, defendant argues that the trial court committed
reversible error by failing to instruct the jury that it could use
defendant Brewington's statement against Brewington only. In the
recent case of State v. Brewington, 352 N.C. 489, 532 S.E.2d 496
(2000), our Supreme Court held that it is not proper to determine
whether the introduction of a co-defendant's statements violateddefendant's rights under the Confrontation Clause unless we first
conclude that the co-defendant's statement implicated the defendant.
Here, we hold that the State redacted Brewington's confession
carefully and that it retained a “natural narrative flow.”
Brewington, 352 N.C. at 512, 532 S.E.2d at 510. Additionally, there
are no indications that the State altered the confession. Id.
Accordingly, we hold that the defendant was not incriminated by
Brewington's confession, and the trial court's failure to give a
limiting instruction was not prejudicial error. However, even if
the trial court's failure to instruct was error, we hold that any
error was harmless beyond a reasonable doubt. Roope, 130 N.C. App.
at 367, 503 S.E.2d at 126 (citations omitted). The State presented
overwhelming evidence of the defendant's guilt including his own
confession. Accordingly, although the better practice would be to
include a limiting instruction, the alleged error does not require
a new trial. Id.
We hold that defendant's remaining assignments of error as to
joinder have no merit.
[4]Defendant next challenges the trial court's failure to give
an instruction on the definition of nighttime.
Our Courts have held that “the constituent elements of burglary
in the first degree are: (1) the breaking (2) and entering (3) in
the nighttime (4) into a dwelling house or a room used as a sleeping
apartment (5) which is actually occupied at the time of the offense
(6) with the intent to commit a felony therein.” State v. Surcey, 139 N.C. App. 432, 434, 533 S.E.2d 479, 481 (2000). See N.C.G.S. §
14-51 (1999). North Carolina provides no statutory definition of
nighttime. However, our courts “adhere to the common law definition
of nighttime as that time after sunset and before sunrise 'when it
is so dark that a man's face cannot be identified except by
artificial light or moonlight.'” State v. Barnett, 113 N.C. App.
69, 74, 437 S.E.2d 711, 714 (1993) (quoting State v. Ledford, 315
N.C. 599, 607, 340 S.E.2d 309, 315 (1986)). Under the North Carolina
Pattern Jury Instructions, the trial judge must instruct the jury
on the definition of nighttime, “ if there is doubt as to whether it
was nighttime.” N.C.P.I., Crim. 214.10 fn. 3 (emphasis added).
We begin by taking judicial notice that on 12 June 1997, in
Harnett County, that civil twilight began at 5:29 a.m. and the sun
rose at 5:59 a.m. See Sun and Moon Data for Dunn, Harnett County,
North Carolina computed by the Astronomical Applications Department
U.S. Naval Observatory; Barnett, 113 N.C. App. at 75, 437 S.E.2d at
714. The evidence showed that during the night, defendant and Lee
rode by Brewington's house honking the horn. The honking roused
Brewington from sleep and the three met at Hardee World later.
After the meeting, defendant and Lee went back to the Brewington
home and committed the murders. An officer saw smoke rolling out of
the house at 6:15 a.m. and had his dispatcher call the Fire
Department.
Greg Maitland testified that a noise aroused him at 4:00 a.m.
He saw nothing out of the ordinary and testified that Robby
Brewington's car was at the house across the street. Lena Edwardstestified that she drove by the Brewington house at 4:45 a.m. and
saw an unfamiliar dark car parked behind the house. However,
evidence obtained from Winn-Dixie showed that two gallon water jugs
were purchased at 4:49 a.m. The cashier from Winn-Dixie testified
that these were the only water jugs the store had sold between 2 and
5 a.m. on the day in question. Therefore, defendant contends that
this evidence shows defendant and Lee must have purchased those jugs
at 4:49 a.m. and creates a conflict with the testimony of Ms.
Edwards. Since defendant could not have been in two places at once,
defendant argues that the break-in could have occurred after Ms.
Edwards saw the strange car at the Brewington house and the jury
could have concluded that the break-in did not occur during the
nighttime.
We agree and hold that the defendant presented sufficient
evidence entitling him to an instruction on the definition of
nighttime. Evidence at trial showed that the defendant and Lee drove
around the Brewington house before even going to Winn-Dixie and
could have been seen while merely riding by the Brewington home. The
evidence went on to show that defendant and Lee did not enter the
house until after they had purchased jugs at Winn-Dixie, filled them
with gas and then met with Brewington at Hardee World. The State's
only witness testified that she saw a strange car at the same time
that the water jugs were being purchased at Winn-Dixie. According
to the State's argument, Ms. Edwards saw the defendant's car at the
time of the break-in and not while the defendant was simply riding
by the house. The only other evidence that the State presented asto the time of the break-in was Officer Edwards who saw smoke at
6:15 a.m. By that time, nighttime had ended.
We hold that this conflicting evidence is sufficient to create
a jury issue as to whether defendant broke and entered the
Brewington house during the nighttime. Since the trial court failed
to give the requested instruction, defendant is entitled to have his
conviction for first degree burglary reversed and a new trial
ordered on the first degree burglary charge.
[5]Finally, we note that one of the grounds for defendant's
two first degree murder convictions was first degree burglary under
the felony murder rule. However, our disposition of defendant's
burglary conviction does not affect those convictions. The jury
found the defendant guilty of first degree murder on three
alternative grounds. In addition to the burglary charge the jury
based its convictions on premeditation and deliberation and the
felony murder rule with the underlying felony of first degree arson.
Since either of those grounds would be sufficient on their own, we
hold that the defendant's two convictions for first degree murder
must stand.
[6]Defendant claims that the trial court erred by allowing the
State to use peremptory challenges to exclude eight African-American
potential jurors for racial discriminatory reasons. Both the U.S.
and North Carolina Constitutions bar the use of peremptory
challenges solely on the basis of race. Batson v. Kentucky, 476 U.S.
79, 90 L. Ed. 2d 69 (1986); State v. Smith, 351 N.C. 251, 262, 524S.E.2d 28, 37 (2000). In Batson, the Supreme Court establis
hed a
three-part test to determine if a prosecutor has engaged in racial
discrimination in the selection of jurors. State v. Braxton, 352
N.C. 158, 179, 531 S.E.2d 428, 440 (2000). First, defendant must
establish a prima facie case that a peremptory challenge was
exercised on the basis of race. Smith, 351 N.C. at 262, 524 S.E.2d
at 37. If the defendant fulfills that threshold requirement, the
burden shifts to the prosecutor to offer a racially neutral
explanation to rebut defendant's prima facie case. Id. The trial
court must then determine whether defendant has proved purposeful
discrimination. Id.
Here, the trial court concluded that the defendant did not
establish a prima facie case of discrimination. Therefore, our
review is limited to whether the trial court erred in finding that
the defendant failed to make a prima facie showing. Id.
Our Supreme Court has described the factors to be considered
in the evaluation of whether defendant established a prima facie
case. Braxton, 352 N.C. at 180, 531 S.E.2d at 441. Among the
relevant factors is whether the prosecutor used a disproportionate
number of peremptory challenges to strike African-American jurors.
Id. The court may also consider the prosecutor's questions and
statements made during jury selection. Id at 180-81, 531 S.E.2d at
441. Finally, the Court may look at the race of the defendant,
victims and witnesses. Id.
Here, the defendant has alleged nothing but conclusory
allegations of discriminatory conduct. He has not cited this Courtto any place in the record where we may interpret the prosecutor's
comments as discriminatory. Further, defendant has not argued that
the prosecutor struck a disproportionate number of African-American
jurors. Simply put, the defendant's argument is that the prosecutor
struck eight African-American jurors and therefore acted with
impermissible racial intent. We hold that these conclusory
allegations without more do not state a prima facie case.
[7]Defendant also assigns error to the trial court's denial
of his request for information and data related to testing performed
by the SBI and for copies of the State's photographs. In his brief,
defendant concedes that our Supreme Court has held that the State
does not have to furnish a defendant with copies of photographs.
State v. James, 321 N.C. 676, 685, 365 S.E.2d 579, 585 (1988).
Instead, G.S. § 15A-903(d)(1999) requires only that the State make
the photographs available to the defendant for inspection and
copying. Here, the defendant can point to nothing in the record to
support his assertion that the State failed to comply with the
statute. Accordingly, this assignment of error is overruled.
Additionally, defendant sought information concerning the SBI
lab results. Specifically, defendant asked for the State to identify
the names of all machines used, the standards in testing, any
containers used to transport the samples, and the procedures used
in transporting these containers. Additionally, defendant requested
that the State produce copies of chromatograms.
Under G.S. § 15A-903(e)(1999), the court must order the prosec
utor to provide
a copy of or to permit the defendant to inspect
and copy or photograph results or reports of
physical or mental examinations or of tests,
measurements or experiments made in connection
with the case or copies thereof within the
possession, custody, or control of the State.
We decline to address whether the defendant was entitled to the
requested information because we hold that any error was harmless
beyond a reasonable doubt. State v. Cunningham, 108 N.C. App. 185,
423 S.E.2d 802 (1992). Here, the SBI reports in question revealed
the presence of gasoline on most of the items tested. The State's
evidence at trial showed that the defendant confessed that he and
Lee doused the beds in gasoline that they purchased earlier in the
evening. Additionally, officers testified that they found a one-half
full jug of gas on a chair in the house and firefighters testified
that the bedroom smelled of gasoline. Defendant cannot in good
faith question the presence of gasoline here. Further, because the
evidence of defendant's guilt is overwhelming, we overrule the
assignment of error as harmless.
[8]Next, defendant assigns error to the propriety of the
prosecutor's closing argument. Defendant claims that the
prosecutor's comments impugn the defendant, defense counsel and the
judicial process in a manner that requires a new trial. The
following exchange took place during the prosecutor's closing
argument.
And counsel for the defendant Brewington
attempts to cast doubt upon the defendant's
confession because they know that that [sic]
confession sinks their client just as surely asan iceberg sunk the Titanic. That's why Mr.
Gilchrist yesterday spent almost his entire
argument attacking this confession.
You know, one of my political heroes was
the late Senator Sam Ervin. Before he became a
[S]enator, Sam Ervin was renowned across this
state as a great trial lawyer, and he once
said, when talking about defending a guilty
client in a criminal case, that if the facts
are against you --
Mr. Bain: Objection.
The Court: Overruled.
Mr. Lock: -- argue the law. And if the law is
against you well then you talk about the facts,
and if both the facts and the law are against
you, well then you pound on the lectern and you
talk about the Constitution and you just argue
like hell.
Yesterday, Mr. Gilchrist did a whole lot of
arguing, and he even talked a little bit about
the Constitution, but he did not shake the
confession of Robby Brewington.
“It is well settled that arguments of counsel rest within the
control and discretion of the presiding trial judge.” State v.
Worthy, 341 N.C. 707, 709, 462 S.E.2d 482, 483 (1995). Our courts
have granted counsel wide latitude in hotly contested cases. Id. On
a number of occasions, our Supreme Court has stated that,
“for an inappropriate prosecutorial comment to
justify a new trial, it 'must be sufficiently
grave that it is prejudicial error.'” In order
to reach the level of “prejudicial error” in
this regard it now is well established that the
prosecutor's comments must have “so infected
the trial with unfairness as to make the
resulting conviction a denial of due process.”
Id. at 709-10, 462 S.E.2d at 483 (citations omitted). In analyzing
a prosecutor's comments, we do not examine them in a vacuum. Id.at 710, 462 S.E.2d at 483. Rather, this Court must view the remarks
in the context in which the prosecutor made them. Id.
Here, we cannot hold that the prosecutor's comments, while
arguably inappropriate, “so infected the trial with unfairness as
to make the conviction a denial of due process.” Id. First, the
district attorney made his argument in direct response to counsel
for Brewington's argument that Brewington's confession resulted from
unconstitutional police conduct. Further, this is not a case in
which the prosecutor has made a degrading comment about the
defendant or his counsel. See State v. Davis, 45 N.C. App. 113, 262
S.E.2d 329 (1980). Finally, we note that the prosecutor's comments
were explicitly directed as a response to counsel for Brewington and
not the defendant's counsel. Therefore, the prosecutor did not even
relate these arguments to this defendant. While we do not approve
of the prosecutor's comments, we hold that on these facts they did
not deny the defendant a fair trial.
[9]Next, defendant alleges that the trial court's failure to
issue him a transcript of the 24 July motion to suppress hearing was
error and violated his constitutional rights. While the better
practice would have been to order a transcript, our review does not
disclose any prejudicial error. Under Britt v. North Carolina, 404
U.S. 226, 30 L.Ed.2d 400 (1971), the U.S. Supreme Court stated that
a trial court does not always have to provide an indigent defendant
with a transcript of a prior proceeding. Instead, availability is
determined by looking at (1) whether the transcript was necessaryfor preparing an effective defense and (2) whether there are
alternative devices available to the defendant. State v. Rankin,
306 N.C. 712, 716, 295 S.E.2d 416, 418-19 (1982). Here, the hearing
on the motion to suppress took place approximately one week before
trial. Defendant had the same counsel for the hearing and trial and
the same judge presided. Further, both counsel and the defendant
were present for both proceedings. Finally, our review of the
transcripts shows that the testimony was substantially the same.
Under these circumstances we hold that the trial court's failure to
order a transcript of the suppression hearing was not prejudicial
error warranting a new trial.
[10]Next, defendant contends that the trial court made several
prejudicial errors in its jury instructions. We disagree. First,
defendant argues that the court's instructions on accessory before
the fact with respect to co-defendant Brewington prejudice the
defendant. The trial court gave substantially the following
instruction as to accessory before the fact on every offense
charged,
[i]f you find from the evidence beyond a
reasonable doubt that on or about the date
alleged that the defendant Henry Michael
McKeithan acting by himself or acting together
with Vera Sue Lee . . . and that before the
crime was committed the Defendant Robert
Brewington counseled, procured, commanded,
knowingly aided McKeithan and Lee to commit the
crime and in so doing Robert Brewington's
actions or statements caused or contributed to
the commission of the crime . . . and that the
defendant Robert Brewington was not present
when the crime was committed your duty would be
to return a verdict of guilty.
Defendant claims that this instruction permitted the jury to
conclude that it could convict Brewington only if it had first
convicted McKeithan of the underlying crime.
In order to convict Brewington of accessory before the fact,
the State had to show:
(1) [Brewington] must have counseled, procured,
commanded, encouraged, or aided the principal
to murder the victim;
(2) the principal must have murdered the
victim; and
(3) [Brewington] must not have been present
when the murder was committed.
State v. Davis, 319 N.C. 620, 624, 356 S.E.2d 340, 342 (1987). If
the principal is acquitted then the accessory is also acquitted.
State v. Suites, 109 N.C. App. 373, 427 S.E.2d 318, disc. review
denied, 333 N.C. 794, 431 S.E.2d 29 (1993). Here, the State
presented overwhelming evidence of defendant's guilt. Therefore, the
trial court did not commit prejudicial error by reading defendant's
name in the accessory charge involving Brewington.
[11]Next, defendant objects to the definition that the trial
court gave for “deadly weapon.” The court started its instruction
by giving verbatim N.C.P.I., Crim. 206.14 for the definition of
deadly weapon. The court then added that “you may consider the size
of the knife and its use thereof. You may also consider the pouring
of gasoline into an occupied dwelling house and the ignition
thereof.” Defendant also assigns error to the trial court's
instruction on premeditation and deliberation. In this instruction,
the trial court made the following statement, “[p]remeditation and
deliberation may be proved by a group of circumstances from whichthey may be inferred; circumstances such as . . . infliction of
lethal wounds.” N.C.P.I., Crim. 206.14 states that premeditation and
deliberation may be proved by circumstances such as the “infliction
of lethal wounds after the victim was felled.” Defendant argues that
the elimination of “after the victim was felled” amounts to error
requiring a new trial.
Our Supreme Court has held that we must construe a trial
court's charge to the jury in context. State v. Boykin, 310 N.C.
118, 125, 310 S.E.2d 315, 319 (1984). We will not hold the charge
to be prejudicial error where it is correct as a whole. Id. “Where
the charge as a whole presents the law fairly and clearly to the
jury, the fact that isolated expressions, standing alone, might be
considered erroneous affords no grounds for reversal.” State v.
Jones, 294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978). Here, we hold
that the jury charge as a whole is correct and the errors and
omissions pointed out by the defendant were not prejudicial.
[12]Defendant argues that the trial court erred by entering
judgment on two counts of conspiracy to commit murder when the jury
only returned one guilty verdict as to conspiracy. The State
concedes that this Court should return this case to the trial court
to arrest judgment on one conspiracy count. We agree that the trial
court erred in this respect and remand the case to the trial court
to arrest judgment as to one of the counts of conspiracy and to
reverse the burglary verdict and remand the burglary charge for a
new trial.
Case Number 97CRS7216 First Degree Murder no error.
Case Number 97CRS7217 First Degree Murder no error. Case Number 97CRS7218 First Degree Arson
no error.
Case Number 97CRS7219 Conspiracy to Commit Murder no error.
Case Number 97CRS7220 Conspiracy to Commit Murder judgment
arrested.
Case Number 97CRS7221 First Degree Burglary new trial.
Reversed and remanded in part, no error in part.
Judges MARTIN and HORTON concur.
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