1. Homicide--first-degree murder--short-form indictment--constitutionality
The use of a short-form indictment in a first-degree murder case was not erroneous even
though it failed to cite the elements of premeditation and deliberation and lying in wait, because
our Supreme Court has consistently upheld the constitutionality of this indictment.
2. Jury--selection--reopening examination--number of peremptory challenges
The trial court erred in a first-degree murder case by denying defendant the full number of
peremptory challenges during jury selection as required by N.C.G.S. § 15A-1217 when it
reopened examination of a juror previously accepted by the parties and ruled that defendant had
no peremptory challenges remaining with which to excuse this juror because: (1) N.C.G.S. §
15A-1217(a)(1) allows defendants tried capitally to have fourteen peremptory challenges, and
N.C.G.S. § 15A-1217(c) allows each party one peremptory challenge for each alternate juror in
addition to any unused challenges; (2) defendant exercised eleven peremptory challenges in
seating the regular jury and then exercised three peremptory challenges in seating the two
alternate jurors for a total of fourteen challenges, meaning defendant had two peremptory
challenges remaining; and (3) defendant was not required to exhaust his supply of peremptory
challenges left over from regular jury selection until he had used both of the challenges allotted
for alternate jurors.
3. Evidence--defendant's oral and written statements given to police--pretrial motion
to suppress
Although a defendant in a first-degree murder case assigns error to the trial court's denial
of his pretrial motion to suppress evidence of the oral and written statements defendant gave to
police shortly after his estranged wife's death, the ruling will not be addressed because: (1) the
Court of Appeals vacated the judgment and determined that defendant is entitled to a new trial;
(2) rulings on motions in limine are merely preliminary and subject to change during the course
of the trial; and (3) defendant may appeal from the ruling in the event he is convicted at the
second trial if he properly preserves this issue at the second trial.
Attorney General Michael F. Easley, by Assistant Attorney
General John F. Maddrey, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defender Danielle M. Carman, for defendant.
HUDSON, Judge.
Defendant was convicted of the first degree murder of his
wife, Peggy Locklear, in a capital trial. He contends he was
denied the full number of peremptory challenges due to him in jury
selection under N.C.G.S. § 15A-1217 (1999). We agree and remand
for a new trial on this basis.
The State presented evidence tending to show that defendant
was seen hanging around a convenience store near the trailer of his
estranged wife, Peggy Locklear (Locklear), on 22 October 1998.
Locklear left for work at 3:30 p.m. that day and returned after
1:00 a.m., being driven by her co-worker, Kona Scott (Scott). As
Locklear exited Scott's car, defendant ran up and began stabbing
Locklear with a knife. Scott honked her car horn and defendant ran
away, but Locklear did not survive the attack.
Defendant was convicted of first degree murder by virtue of
lying in wait and premeditation and deliberation. The jury
recommended a sentence of life without parole, and the trial court
entered judgment accordingly. Defendant filed notice of appeal to
this Court.
[1]Defendant contends his first degree murder conviction must
be vacated, because the indictment in which he was charged with
murder failed to cite the elements of premeditation and
deliberation and lying in wait in violation of his rights under the
Fifth, Sixth, and Fourteenth Amendments of the federal constitution
and Article I, §§ 19, 22, and 23 of the state constitution.
Defendant was charged using the short-form indictment authorized by
N.C.G.S. § 15-144 (1999). Our Supreme Court has consistently ruled
that the use of the short-form indictment based upon this statuteis not violative of defendants' rights under the United States and
North Carolina Constitutions. State v. Wallace, 351 N.C. 481, 504-
05, 528 S.E.2d 326, 341, cert. denied, ___ U.S. ___, 148 L. Ed. 2d
498 (2000). Defendant's assignment of error is without merit.
Defendant next contends the trial court committed several
errors during jury selection. The parties began selecting a jury
on 17 August 1999. On August 18, defendant accepted Virginia
Slaughter to be a juror. On August 24, defendant challenged
prospective juror Hilary Britt for cause, on the grounds that
Britt's daughter had already been seated as a juror and Britt
stated on voir dire that he strongly believed family members should
not serve together on a jury. The trial court denied defendant's
challenge for cause, and defendant proceeded to exercise a
peremptory challenge against Britt. Between August 17 and August
24, defendant used a total of eleven peremptory challenges against
prospective jurors for seats one through twelve. On August 25, the
parties began selecting two alternate jurors. Defendant used a
total of three peremptory challenges against prospective jurors for
alternate seat one. By August 26, defendant had accepted two
alternate jurors.
On the morning of August 27, juror Virginia Slaughter did not
report for duty. A court clerk called Slaughter's daughter to try
to locate her, and Slaughter's daughter allegedly told her that
Slaughter had memory problems. The judge said that this surprised
him, but recalled that Slaughter had appeared at the courthouse on
two occasions when she had not been instructed to come. He thensuggested that they move one of the alternates into Slaughter's
position on the jury and select a new alternate. Before this
selection took place, Slaughter appeared for jury duty.
The judge then asked her a number of questions regarding her
reasons for not coming to court earlier that morning and her
fitness to serve, and allowed both the prosecutor and defense
counsel to question her as well. Slaughter indicated that she had
had a light stroke, but that she felt able to serve on the jury.
At the close of the questioning, defendant made a motion to excuse
Slaughter for cause, which motion was denied.
Defendant then moved to exercise a peremptory challenge
against Slaughter. The trial court stated that defendant had
exercised all of his peremptory challenges for the regular jury and
that he only had challenges remaining for alternate jurors.
Defendant then asked the judge to revisit his ruling refusing to
dismiss juror Hilary Britt for cause, in an effort to gain back the
peremptory challenge he had exercised to excuse Britt. The court
again denied defendant's challenge to Britt for cause. The jury
was then impaneled.
[2]Defendant contends the trial court erred in denying his
challenges for cause against Slaughter and Britt, and in ruling
that he had no peremptory challenges remaining with which to excuse
Slaughter. We will first address the issue of defendant's
peremptory challenge against Slaughter. The applicable statute,
N.C.G.S. § 15A-1214(g) (1999), provides:
If at any time after a juror has been accepted by a
party, and before the jury is impaneled, it is discovered
that the juror has made an incorrect statement duringvoir dire or that some other good reason exists:
(1) The judge may examine, or permit counsel to
examine, the juror to determine whether there is a
basis for challenge for cause.
. . . .
(3) If the judge determines there is no basis for
challenge for cause, any party who has not
exhausted his peremptory challenges may challenge
the juror.
In the present case, after Slaughter was chosen as a juror but
before the jury was impaneled, the judge examined and allowed
counsel to examine Slaughter with regard to whether good reason
existed to excuse her. When the judge rejected defendant's
challenge for cause, defendant was entitled by statute to exercise
a peremptory challenge against Slaughter if he had any remaining.
The judge determined he had none remaining. We disagree.
Under G.S. § 15A-1217(a)(1), defendants tried capitally are
allowed fourteen peremptory challenges. Furthermore, under G.S. §
15A-1217(c), "[e]ach party is entitled to one peremptory challenge
for each alternate juror in addition to any unused challenges." In
the present case, defendant exercised eleven peremptory challenges
in seating the regular jury. He then exercised three peremptory
challenges in seating the alternate jurors, for a total of fourteen
challenges. He thus used twelve of the peremptory challenges
allotted under G.S. § 15A-1217(a)(1) and two challenges allotted
under G.S. § 15A-1217(c) in seating the jury. As such, he had two
peremptory challenges remaining at the time he attempted to
exercise a peremptory challenge against Slaughter.
It appears from the record that the trial court believed thatdefendant was required to use the three peremptory cha
llenges he
had remaining after seating the regular jury before being able to
use the additional challenges allotted for alternate jurors. We do
not believe the statute so requires. Defendant was not required to
exhaust his supply of peremptory challenges left over from regular
jury selection until he had used both of the challenges allotted
for alternate jurors in G.S. § 15A-1217(c). The latter statute
specifies that a defendant is entitled to two peremptory challenges
for alternate jurors "in addition to any unused challenges"
(emphasis added).
The decision whether to reopen examination of a juror
previously accepted by the parties is within the discretion of the
trial court. State v. Freeman, 314 N.C. 432, 437, 333 S.E.2d 743,
747 (1985). However, once the court has decided to reopen the
examination, the parties have "an absolute right" to exercise any
remaining peremptory challenges. Id. at 438, 333 S.E.2d at 747.
"The right to challenge a given number of jurors without showing
cause is one of the most important of the rights secured to the
accused . . . ." Id. (citation omitted). Thus, defendant was
denied his fundamental right to exercise the full number of
peremptory challenges allotted to him by statute and must have a
new trial. See id.; see also State v. Hightower, 331 N.C. 636,
641, 417 S.E.2d 237, 240 (1992)(defendant deprived of right to
peremptory challenge and awarded new trial).
In that we have decided defendant was denied full use of his
peremptory challenges, we need not address the propriety of thecourt's denial of his challenges for cause against jurors
Slaughter and Britt.
[3]Defendant next assigns as error the trial court's denial
of his motion to suppress evidence of the oral and written
statements he gave to police shortly after Locklear's death.
Because we have determined that defendant is entitled to a new
trial, we believe it is in the interest of conserving judicial
resources not to address the trial court's pretrial ruling at this
juncture. Rulings by a trial court on motions in limine
(See footnote 1)
"are
merely preliminary and subject to change during the course of
trial, depending upon the actual evidence offered at trial." State
v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997) (quoting T&T
Development Co. v. Southern Nat. Bank of S.C., 125 N.C. App. 600,
602, 481 S.E.2d 347, 348-49, disc. review denied, 346 N.C. 185, 486
S.E.2d 219 (1997)), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099
(1998); see also State v. Lamb, 321 N.C. 633, 649, 365 S.E.2d 600,
608 (1988) ("A ruling on a motion in limine is a preliminary or
interlocutory decision which the trial court can change if
circumstances develop which make it necessary.").
Furthermore, an objection to an order granting or denying a
motion in limine "is insufficient to preserve for appeal thequestion of the admissibility of evidence." State v. Conaw
ay, 339
N.C. 487, 521, 453 S.E.2d 824, 845, cert. denied, 516 U.S. 884, 133
L. Ed. 2d 153 (1995). In order to preserve the issue for appeal,
"[a] party objecting to an order granting or denying a motion in
limine . . . is required to object to the evidence at the time it
is offered at the trial (where the motion was denied) or attempt to
introduce the evidence at the trial (where the motion was
granted)." T&T Development Co., 125 N.C. App. at 602, 481 S.E.2d
at 349. Thus, when a party purports to appeal the granting or
denying of a motion in limine following the entry of a final
judgment, the issue on appeal is not actually whether the granting
or denying of the motion in limine was error, as that issue is not
appealable, but instead "whether the evidentiary rulings of the
trial court, made during the trial, are error." Id. at 602-03, 481
S.E.2d at 349.
Here, because we have vacated the judgment and have determined
that defendant is entitled to a new trial, the trial court's ruling
on defendant's pretrial motion to suppress has, once again, become
"preliminary" in nature because (1) the ruling may change during
the second trial depending on the evidence offered by the parties,
and (2) the ruling may ultimately not be appealable at all if, at
trial, the State does not seek to admit the evidence, or if, when
the State seeks to admit the evidence, the defendant fails to
object. Moreover, not only is it possible that the ruling may
change during the second trial, but the defendant (or the State)
may request a rehearing on the motion to suppress prior to thesecond trial based on new evidence, at which time the trial court
may modify the ruling made prior to the first trial. See State v.
Sanders, 327 N.C. 319, 395 S.E.2d 412 (1990), cert. denied, 498
U.S. 1051, 112 L. Ed. 2d 782 (1991); see also State v. Bates, 343
N.C. 564, 473 S.E.2d 269 (1996) (implicitly approving the trial
court's denial of the defendant's motion for a rehearing on his
motion to suppress prior to the second trial because the defendant
failed to show additional pertinent facts, discovered since the
first hearing, which could not have been discovered with reasonable
diligence prior to the first hearing), cert. denied, 519 U.S. 1131,
136 L. Ed. 2d 873 (1997).
Finally, we note that the trial court's ruling on defendant's
motion to suppress prior to the first trial continues to stand
following remand for a new trial by this Court, and, provided it is
not modified prior to or during the second trial, and provided the
issue is properly preserved during the second trial, defendant may
appeal that ruling in the event he is convicted at the second
trial. See State v. Grogan, 40 N.C. App. 371, 253 S.E.2d 20
(1979).
Defendant last argues the trial court erred by admitting into
evidence as corroborative a statement Kona Scott gave police, in
that it did not tend to corroborate the testimony Scott gave at
trial. We decline to address this issue, as it will not likely
recur on retrial.
New trial.
Judges MARTIN and HUNTER concur.
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