1. Constitutional Law--due process--no knowing use of false testimony
The State did not knowlingly use false testimony in violation of
defendant's trial for murder, kidnapping and armed robbery by its use of a
codefendant's testimony that three shots were fired at the victim rather
than four as shown by the autopsy, although the State had argued in a
second codefendant's trial that the codefendant - witness had not testified
truthfully in that trial, since the exact number of shots fired and the
identity of the person firing a fourth shot was immaterial and the
inconsistencies were for the jury to resolve. Even if the codefendant's
testimony ws erroneously admitted, the error was not prejudicial because
other witnesses also linked defendant to the robbery, kidnapping and murder
of the victim.
2. Constitutional Law--right to present defense--attorneys from
codefendant's trial--not permitted to testify
The trial court did not violate a defendant's right to present his
defense to charges of first-degree murder, first-degree kidnapping, and
armed robbery where the court prohibited testimony from the prosecutor and
defense attorney in the earlier trial of a co-defendant and did not enforce
a subpoena for another co-defendant. The closing argument of the
prosecutor in the prior trial about inferences to be drawn from a co-
defendant's testimony in that trial is not the equivalent of the State
knowingly presenting false testimony in this trial, the tendered testimony
of the defense attorney would have been cumulative, and defendant failed to
make an offer of proof as to the testimony of the missing co-defendant.
3. Constitutional Law--right to confront witnesses--cross-examination
limited
The trial court did not unconstitutionally limit cross-examination by
defendant in a prosecution for first-degree murder, first-degree
kidnapping, and armed robbery. The right to confront and cross-examine is
not absolute and may bow to accommodate other legitimate interests in the
criminal trial process; the court may exclude evidence that is irrelevant,
non-probative, speculative, not within a witness's personal knowledge, or
that includes legal conclusions from a lay witness.
4. Criminal Law--hung jury--insufficient time for deliberation--mistrial
denied
The trial court did not abuse its discretion by denying defendant's
motions for a mistrial when informed that the jury could not reach a
unanimous verdict where the court correctly found that there had not been
sufficient deliberation by the jury in the first instance and that there
was insufficient evidence that the jury was hung in the second.
5. Homicide; Kidnapping; Robbery--evidence sufficient
The trial court did not err in a prosecution for first-degree murder,first-degree kidnapping, and armed robbery by
denying defendant's motions
for nonsuit where the State presented sufficient evidence.
Roy A. Cooper, Attorney General, by Joyce S. Rutledge, Assistant
Attorney General, for the State.
Geoffrey W. Hosford for defendant-appellant.
WYNN, Judge.
In August 1999, defendant was tried and convicted for first-degree
murder, first-degree kidnapping, and robbery with a dangerous weapon.
The State's evidence tended to show that three teenagers--defendant
(16), Keith Wiley (19), and Alicia Doster (16) successfully planned the
murder of Richie Futrelle (17). This tragedy was heightened by the
additional revelation that the killing stemmed from a disputed cocaine debt
of around $25.00.
It began when the three invited Futrelle to an abandoned house that they
shared. When Futrelle arrived at the house, he helped John Mullins fix his
car. After Mullins left, defendant and Wiley hit and kicked Futrelle; they
hog-tied his hands and feet with pre-cut cable, and took his wallet. Then,
they carried Futrelle to his father's car; placed him in the trunk; drove the
car to a deserted area, and removed him from the trunk.
Somehow Futrelle untied the cable from his hands in the trunk; but, the
three again tied him up and Doster gagged him with a bandana. Then they
walked Futrelle down to a ditch where they laid him on his back. Again,
Futrelle freed himself from the cable. When Futrelle started running, Wiley
shot him in either the arm or leg with a sawed-off 12-gauge shotgun; Futrelle
screamed. Wiley handed the shotgun to defendant, who shot Futrelle in hisback or arm and in the back of his neck.
The medical evidence confirmed a gaping gunshot wound to Futrelle's
right arm, a large gaping wound to the center of his back at the shoulder
blade, a large wound to the left of his buttocks, and a wound at his left
groin caused his death. The wound in Futrelle's chest damaged his right
lung, lacerated a blood vessel under his heart and filled his chest cavity
with blood. The shotgun blast to his back fatally destroyed his spinal
column. The buttocks' wound fatally ruptured his kidney and liver.
Following additional evidence and the resulting jury convictions, the
trial judge sentenced defendant to life imprisonment without parole. He
appeals to this Court.
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The issues on appeal are whether the trial court erred in: (I) denying
defendant's motion to exclude testimony of Alicia Doster; (II) prohibiting
defendant from introducing evidence in support of his motion to exclude the
testimony of Alicia Doster; (III) excluding the testimony of defense
witnesses and preventing defendant from compelling attendance of a witness;
(IV) denying defendant's motion for mistrial; (V) and denying defendant's
motion for a nonsuit at the close of State's evidence and again at the close
of all of the evidence. For the reasons stated below, we conclude that
defendant received a fair trial, free from prejudicial error.
[1]First, defendant argues that the trial court violated his
constitutional right to due process of law by allowing the State to introduce
the alleged untruthful testimony of Doster. We disagree.
“The law is clear that a prosecutor's presentation of known false
evidence, allowed to go uncorrected, is a violation of a defendant's right to
due process.” State v. Joyce, 104 N.C. App. 558, 565, 410 S.E.2d 516, 520
(1991). However, “[i]nconsistencies and contradictions in the State'sevidence are a matter for the jury to consider and resolve.”
; State v.
Edwards, 89 N.C. App. 529, 531, 366 S.E.2d 520, 522 (1988), rev. denied, 331
N.C. 120, 414 S.E.2d 764 (1992). Where the evidence is found to be
“inconsistent or contradictory, rather than a knowing falsehood, such
contradictions in the State's evidence are for the jury to consider and
resolve.” State v. Clark, 138 N.C. App. 392, 397, 531 S.E.2d 482, 486
(2000).
In this case, defendant moved to exclude Doster's testimony, asserting
that the State knew that she gave false testimony. He states that in the May
1999 trial of co-defendant Wiley, the prosecutor in that case argued that
Doster had not testified truthfully. He contends that the State is bound by
that argument in this case; however, the State responds that “there was no
untruthful testimony on the part of Miss Doster as it relates to whether or
not this defendant . . . did, in fact shoot” Futrelle. In the subject
case, we find that there is no reasonable likelihood that Doster's memory
that three shots had been fired, instead of four shots as confirmed by the
autopsy report, affected the jury's judgment in convicting defendant of
felony murder, kidnapping and armed robbery. The exact number of shots fired
or the actual identity of the person firing a fourth shot was not material
and the inconsistencies were for the jury to resolve.
Even assuming, for the sake of argument, that Foster's statement was
erroneously admitted, the error was not prejudicial. “Where improperly
admitted evidence merely corroborates testimony from other witnesses, we have
found the error harmless.” State v. Wynne, 329 N.C. 507, 519, 406 S.E.2d
812, 818 (1991). In this case, Doster was not the only witness linking
defendant to armed robbery, kidnapping and murder of Futrelle. Futrelle's
mother testified that her son told her he was going to defendant's house on
the day of the murder; and she never saw her son alive again. John Mullinswho had been at the place where defendant, Wiley and Doster plan
ned and
carried out the robbery and kidnapping, saw Futrelle arrive that afternoon;
and he learned that defendant and Wiley committed the murders. Mullins also
observed that defendant was in possession of Futrelle's keys. Brian Jacobs
testified that he saw defendant and Wiley drive Futrelle's car to the back of
a trail and shortly thereafter, he saw the two men walk out of the woods.
Further, defendant was connected to numerous items from the crime scene and
on his person at the time of arrest. Overwhelming evidence of a defendant's
guilt may render a constitutional error harmless. See State v. Autry, 321
N.C. 392, 364 S.E.2d 341 (1988). Under the record on appeal in this case, we
find sufficient evidence connecting defendant to the robbery, kidnapping and
felony murder of Futrelle; and thus, the admission of Doster's testimony
regarding the firing of three shots if error was harmless. See State v.
Soyars, 332 N.C. 47, 59, 418 S.E.2d 480, 487 (1992).
[2]In his second argument, defendant contends the trial court violated
his constitutional right to present his defense to the charges, when it
prohibited him from introducing evidence and refused to enforce the subpoena
and the writ that he properly issued to his witnesses. We disagree.
“Due process requires that every defendant be allowed a reasonable time
and opportunity to investigate and produce competent evidence, if he can, in
defense of the crime with which he stands charged and to confront his
accusers with other testimony.” State v. Baldwin, 276 N.C. 690, 698, 174
S.E.2d 526, 531 (1970). "However, no set length of time for investigation,
preparation and presentation is required, and whether defendant is denied due
process must be determined upon the basis of the circumstances of each case."
State v. Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976). “Due process
does not include the right [to develop] immaterial evidence.” Baldwin, 276N.C. at 700, 173 S.E.2d at 533.
In this case, defendant subpoenaed, John Merrill, the assistant district
attorney who made the closing argument in the earlier trial of co-defendant
Wiley. The State moved to quash the subpoena because Merrill was an advocate
in the murder trial of co-defendant Wiley, and worked with the State in
preparation in this trial. The State argued that the evidence in this trial
was substantially identical to that of the trial of the co-defendant, Wiley.
The State also argued that any knowledge of Sherrill is privileged work
product; and that defendant seeks to circumvent N.C. Gen. Stat. § 15A-
Article 48, the discovery statutes, by use of subpoena.
The trial court may not "permit disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation in which the material is
sought or work product of the attorney or attorneys of record in the
particular action." N.C. Gen. Stat. § 1A-1, Rule 26(b)(3) 1999). Further,
the trial court at all times has the discretion to exclude “needless
presentation of cumulative evidence,” even where the evidence is arguably
relevant, and to “exercise reasonable control over the mode and order of
interrogating witnesses . . . so as to . . . avoid needless consumption of
time.” N.C. Gen. Stat. § 8C-1, Rules 403 and 611 (1999); see also State v.
Barton, 335 N.C. 696, 441 S.E.2d 295 (1994).
In this case, the content of any possible testimony of Sherrill and its
lack of materiality was addressed by the trial court. We find the
prosecutor's mere opinion about possible inferences to be drawn from Doster's
testimony concerning her witnessing only three shots, is not equivalent to
the knowing presentation of false testimony that would reasonably affect the
jury's judgments as to defendant's culpability for felony murder, kidnapping
and armed robbery. The trial court also prohibited defendant from introducing any evidence
through the testimony of Bruce Mason, the attorney who represented co-
defendant Doster. In a voir dire hearing, Mason testified he had not been
present during every meeting between Doster and the detectives. He also
stated in voir dire that the prosecutors discussed how the testimony would be
conducted and the facts of the case with Doster. The State argued that
Mason's testimony arguably raised attorney-client privilege issues and that
the “the Court, as jury, has already heard evidence about the amount of time
that Doster spent with detectives and with the District Attorney's office
involving this case.”
Nonetheless, defendant asserts that he did not have any questions for
Mason that violated the lawyer-client privilege, but sought him as a witness
to discuss what the detectives and the prosecutors said to Doster in their
preparations for her testimony. According to the record, Doster testified at
trial about those topics in considerable detail and defendant both cross-
examined and recross-examined her. During the cross-examination, she
admitted the differences in the various statements she gave to law
enforcement officers; estimated the exact number of hours spent in meetings
with police and prosecutors; and testified about her plea agreement with the
State. Thus, the tendered testimony would have been cumulative. Moreover,
even assuming, for the sake of argument, that similar testimony by Mason was
relevant to any theory of the defendant's case, any error in not admitting
that evidence was harmless. See State v. Hightower, 340 N.C. 735, 745, 459
S.E.2d 739, 745 (1995).
We also uphold the trial court's decision not to enforce the subpoena
for Wiley's appearance because defendant failed at trial to make an offer of
proof as to Wiley's proposed testimony. “Accordingly, defendant has failed
to preserve this issue for appellate review under the standard set forth in N.C.G.S. § 8C-1, Rule 103(a)(2).” State v. Braxto
n, 352 N.C. 158, 184, 531
S.E.2d 428, 443 (2000), cert. denied, 121 S.Ct. 890, 148 L.Ed.2d 797 (2001).
"[I]n order for a party to preserve for appellate review the exclusion of
evidence, the significance of the excluded evidence must be made to appear in
the record and a specific offer of proof is required unless the significance
of the evidence is obvious from the record." State v. Simpson, 314 N.C.
359, 370, 334 S.E.2d 53, 60 (1985). “The reason for such a rule is that 'the
essential content or substance of the witness' testimony must be shown before
we can ascertain whether prejudicial error occurred.'" State v. Barton, 335
N.C. 741, 749, 441 S.E.2d 306, 310 (1994)(quoting State v. Simpson, 314 N.C.
359, 370, 334 S.E.2d 53, 60 (1985)). In the case at bar, defendant made no
offer of proof regarding his proffered testimony and the significance of the
excluded testimony is not obvious from the record. The defendant therefore
failed to preserve any issue concerning the exclusion of this testimony for
appellate review.
[3]In his third argument, defendant contends that the trial court
violated his constitutional right to confront and cross-examine the witnesses
against him. The defendant specifically argues that the trial court's
limitation on his cross-examination of Doster and Mullins constituted
reversible error, on the grounds that he was precluded from testing the
credibility of these two State witnesses and such preclusion prejudicially
influenced the jury's verdict.
“The Sixth Amendment of the Constitution, made applicable to state
criminal proceedings by Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13
L.Ed.2d 923 (1965), guarantees the right of an accused in a criminal trial to
be confronted with the witnesses against him.” State v. Fortney, 301 N.C.
31, 36, 269 S.E.2d 110, 112-13 (1980). “But, the defendant's right tocross-examination is not absolute. The testimony which defendan
t sought to
elicit must be relevant to some defense or relevant to impeach the witness.”
State v. Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d 853, 854, rev. denied, 333
N.C. 793, 431 S.E.2d 28 (1993). "[T]he right to confront and to
cross-examine is not absolute and may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial process." State
v. Fortney, 301 N.C. at 36, 269 S.E.2d at 113. The trial court may exclude
evidence that is irrelevant, non-probative, speculative, not within a
witness' personal knowledge, and calling for legal conclusions from a lay
witness. N.C. Gen. Stat. § 8C-1, Rules 401, 402, 602, 611(a), 611(b) and 701
(1999).
As to this assignment of error, defendant first argues that the trial
court prevented him from questioning Doster concerning her plea agreement,
memory loss, memory gain and pre-trial confinement. The trial court
sustained the State's objection to this line of questioning. Significantly,
these questions had already been answered by Doster in prior questioning.
The defendant further argues that the trial court improperly prevented him
from questioning Mullins about his involvement in the murder. However, the
record on appeal shows that defendant questioned Mullins about whether he had
been charged with anything; and Mullins twice answered that he had not been
charged. We hold that defendant fails to make a showing that the verdict was
improperly influenced by any of the trial court's curtailments of his
cross-examination; accordingly, this assignment of error is overruled.
[4]Next, defendant contends that the trial court committed reversible
error when it denied his motion for a mistrial after the jury informed the
trial court that it is unable to reach unanimous verdict.
This Court has held that the decision to order a mistrial lies within
the discretion of the trial judge. See State v. Pakulski, 319 N.C. 562, 568,356 S.E.2d 319, 323 (1987). Such a ruling is re
viewable only for gross abuse
of discretion. See State v. Darden, 48 N.C. App. 128, 268 S.E.2d 225 (1980).
A mistrial is generally granted where there have been improprieties in the
trial of such a serious nature, that defendant cannot receive a fair and
impartial verdict. See State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d
138, 140 (1998); see also N.C. Gen. Stat. § 15A-1061 (1996); State v. Cagle,
346 N.C. 497, 516, 488 S.E.2d 535, 548 (1997).
In this case, the jury left the courtroom at 2:42 p.m. to commence its
deliberations. At approximately one hour and a half later, the bailiff made
the judge aware that the jury had a question; that was discussed with counsel
and then a record was made as follows:
THE COURT: All right. Let the record reflect that the
jury knocked on the door, handed a note to the Bailiff
and the Bailiff delivered the note to me. The note says,
“If we are hung on Count No. 1 and if we find the
defendant guilty of 2 or 3 or both, would he still get
life with no chance of parole?”
I have spoken with counsel in Chambers and it is my
intention to bring the jury back in and to inform them
that they are not to be concerned with the punishment in
this case, that their role is to find the facts of the
case as they find the facts to be, and that is their
function in this case, and they are not to consider the
punishment as to any crime. . . .
MR. HOSFORD: Your honor, at this time, without the jury
present, I would make a motion for mistrial on Count I if
the jury says they are hung.
THE COURT: Well, because of the nature of the way the
question is worded, I'm not going to deal with that at
this time. I don't think they have sufficiently
deliberated as to reach that point.
This colloquy confirms that the trial court correctly found that there
had not been sufficient deliberation by the jury to conclude that it had no
reasonable possibility of agreement on the murder charge. The record shows
that the jury deliberated less than two hours on three charges in a case
involving twenty-seven witnesses and over a hundred exhibits. Moreover, we also uphold the trial court's ruling on d
efendant's second
motion for a mistrial, which followed the delivery of a jury note at just
after 5:00 p.m. on the same afternoon. In the second note, the jury wrote:
“We would like to have in writing the five points of the burden of proof for
first degree murder charges. We would like to reconvene at 9:30 tomorrow
morning.” After defendant moved for mistrial, the trial court responded:
[T]he jury got the case at quarter to 3:00 . . . and it's
a little after 5:00, and there is not further indication
in this note that . . . they are in a hung status . . .
. [A]s a matter of fact, they are wanting some further
instructions on the law. And there is no sufficient
reason at this time to entertain that motion.
We overrule this assignment of error because the facts show no abuse of
discretion and no serious improprieties that would make it impossible for
defendant to receive a fair and impartial verdict. See State v. Blackstock,
314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985); State v. Davis, 130 N.C. App.
at 679, 505 S.E.2d at 140; see also N.C. Gen. Stat. § 15A-1061 (1999).
[5]In his final argument, defendant contends that the trial court erred
when it denied his motions for nonsuit at the close of the State's evidence
and again at the close of all of the evidence.
A motion for nonsuit in a criminal case requires
consideration of the evidence in the light most favorable
to the State, and the State is entitled to every
reasonable intendment and every reasonable inference to
be drawn therefrom. [citation omitted]. Contradictions
and discrepancies are for the jury to resolve and do not
warrant nonsuit.
State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581 (1975). “If
there is substantial evidence--whether direct, circumstantial, or both--to
support a finding that the offense charged has been committed and that
defendant committed it, a case for the jury is made and nonsuit should be
denied.” Id. at 117, 215 S.E.2d at 582.
We hold that the trial court did not abuse its discretion when it denieddefendant's motion for nonsuit because the
State presented substantial
evidence that defendant committed first-degree murder under the felony murder
rule, first-degree kidnapping, and robbery with a dangerous weapon.
Therefore, this assignment of error is overruled.
For the foregoing reasons, we find that defendant received a fair trial,
free from prejudicial error.
No prejudicial error.
Judges TIMMONS-GOODSON and HUDSON concur.
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