Appeal by defendants from judgments entered 10 February 2000
by Judge Michael E. Helms in Superior Court, Wilkes County. Heard
in the Court of Appeals 22 August 2001.
Attorney General Roy Cooper, by Special Deputy Attorney
General Norma S. Harrell; and Special Deputy Attorney General
James C. Gulick, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defender Anne M. Gomez, for defendant-appellant
Ronnie Wesley Stroud.
Don Willey for defendant-appellant Bonnie Edwards Stroud.
McGEE, Judge.
Defendant Ronnie Wesley Stroud (Stroud) was indicted for
conspiracy to commit murder and for the 6 July 1998 first degree
murder of Darren Edwards. Defendant Bonnie Edwards Stroud, now
known as Bonnie Edwards (Edwards), was also indicted for conspiracy
to commit murder and for the first degree murder of Darren Edwards.
The cases were joined for trial. A jury found both defendants
guilty of first degree murder and conspiracy to commit murder on 10
February 2000. Both defendants were sentenced to life imprisonment
without parole for the first degree murder convictions, and both
defendants were sentenced to 189 to 236 months in prison for the
conspiracy to commit murder convictions. Defendants appeal.
Evidence presented by the State at trial tended to show that
eighteen-year-old Darren Edwards (Darren) was stabbed at his home
in Wilkes County during the early morning hours of 6 July 1998.
Darren lived with Edwards, his mother, and with Stroud, his
stepfather. Dr. Patrick Lantz, who performed an autopsy of
Darren's body on 7 July 1998, testified Darren died of a stab wound
about two and a quarter inches long between his spine and his right
shoulder blade. A knife went into Darren's right lung and severed
his breathing tube. A neighbor of Stroud and Edwards, Raye Miller, testified that
on 6 July 1998, Edwards came to her house asking her for help and
to call "911." Ms. Miller saw Darren lying in her front yard with
puddles of blood around him. She testified Stroud stated, "I'll be
sent off forever." Another neighbor, Colbert Eller (Eller),
testified Stroud had awakened him by ringing his doorbell. He
looked out his door and saw a body in Ms. Miller's yard and heard
someone say, "I think he's dead."
Deputy Eric Anderson of the Wilkes County Sheriff's Department
testified that when he arrived at the scene, he asked Stroud what
had happened and Stroud replied, "Oh, my God, I did it. I did it.
He hit Bonnie." Sergeant Alan Flora of the Wilkes County Sheriff's
Department approached Stroud and asked if he needed help. Stroud
stated, "I threw it and I hit him with it, and now he's hurt bad."
When Sergeant Flora asked what he threw, Stroud stated, "A knife."
Upon hearing Sergeant Flora confirm Darren was dead, Edwards
became hysterical. As Sergeant Flora walked Edwards to her home,
he observed blood across the driveway and a trail of blood towards
the home of Edwards and Stroud. There was a significant amount of
blood inside the home, especially in the kitchen. Edwards told
Sergeant Flora, "I begged him not to bring that knife into this
house." After unsuccessfully looking for the knife, officers asked
Stroud for assistance, and he led them to where he had hidden the
knife. Stroud kept saying, "I did it. I killed Darren."
Eller testified that about a week prior to Darren's death, he
observed a fight between Darren and Stroud, in which Stroud was
holding a baseball bat, and Darren was holding a piece of wood.
Darren threw a rock at Stroud, and Stroud lost his footing. Darren
took the bat from Stroud, and Stroud ran away with Darren chasing
after him. Darren's older brother, Bobby Edwards (Bobby), testified that
the earlier death of his and Darren's father bothered Darren a
great deal, and both Darren and Bobby were concerned about their
mother dating Stroud soon after their father's death. Bobby
testified that when he was at his mother's home, he saw problems
between Darren, Edwards, and Stroud. Darren told Bobby about
fights between Darren and Stroud, including one incident when
Stroud allegedly hit Darren with a baseball bat.
Darren's fiancé, Angela Edgle, testified she observed a fight
between Darren and Edwards about three weeks before Darren's death.
Edwards chased Darren with a large piece of glass and told Darren
to pack his things and leave the house.
Two social workers from the Wilkes County Department of Social
Services testified there had been reports of violence at Darren's
home involving Darren, Edwards, and Stroud. Their records
indicated Darren was placed in the Ebenezer Garden Christian
Children's Home in Wilkes County for a period of time because his
mother's home was unsafe due to Stroud's presence. Edwards had
agreed Darren needed to be out of her home because it was unsafe,
but later she denied their problems after she learned she would not
receive Darren's social security checks if he was not living in her
home.
Several of Edwards' former co-workers at Tyson's Foods
testified regarding statements Edwards had made in the past that
she hated Darren, wished he were dead, and wished she had never had
children. One co-worker testified Edwards told her if someone did
not kill Darren, she would. Another co-worker testified that a
couple of months before Darren's death, Edwards had asked her where
Edwards might obtain a gun to kill Darren and Stroud. A benefits
counselor at Tyson's Foods testified Edwards had several lifeinsurance policies through her employment, including policies which
covered her husband and any children under the age of nineteen,
including Darren. In the event Darren died before age nineteen,
Edwards would receive $50,000. Darren's nineteenth birthday would
have been 24 July 1998.
Sandra Osborne (Osborne) testified that on the morning of 5
July 1998, Edwards went to the mobile home park where Stroud was
staying with a friend. Osborne saw Edwards leave the trailer with
a hunting knife about twelve to fourteen inches long. Osborne
testified Edwards told her, "I smell death tonight." Edwards told
Stroud to "get the knife and come on," and "this is going to end
once and for all."
Neither defendant presented evidence at the guilt/innocence
phase of the trial.
I. Defendant Ronnie Wesley Stroud
A.
[1]Stroud first argues he must be granted a new trial because
he was not afforded effective assistance of counsel. He
specifically argues his counsel failed to move to sever his case
from Edwards' case for trial, failed to object to irrelevant
evidence and inadmissible hearsay, and failed to request limiting
instructions for evidence admissible against Edwards but not
against Stroud.
In general, claims of ineffective assistance of counsel
should be considered through motions for appropriate relief and not
on direct appeal.
See State v. Dockery, 78 N.C. App. 190, 192, 336
S.E.2d 719, 721 (1985) ("The accepted practice is to raise claims
of ineffective assistance of counsel in post-conviction
proceedings, rather than direct appeal.");
State v. Ware, 125 N.C.
App. 695, 697, 482 S.E.2d 14, 16 (1997) (dismissing defendant'sappeal because issues could not be determined from the record on
appeal and stating that to "properly advance these arguments
defendant must move for appropriate relief pursuant to G.S. 15A-
1415."). A motion for appropriate relief is preferable to direct
appeal because in order to
defend against ineffective assistance of
counsel allegations, the State must rely on
information provided by defendant to trial
counsel, as well as defendant's thoughts,
concerns, and demeanor. "[O]nly when all
aspects of the relationship are explored can
it be determined whether counsel was
reasonably likely to render effective
assistance." Thus, superior courts should
assess the allegations in light of all the
circumstances known to counsel at the time of
representation.
State v. Buckner, 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000)
(citations omitted).
However, Stroud states that in light of
McCarver v. Lee, 221
F.3d 583 (4th Cir. 2000),
cert. denied, 531 U.S. 1089, 148 L. Ed.
2d 694 (2001), he has raised the issue of ineffective assistance of
counsel on direct appeal. In
McCarver, the Fourth Circuit Court of
Appeals dismissed the defendant's petition for writ of habeas
corpus, filed after the defendant's motion for appropriate relief
had been denied, because the court stated the defendant's claim was
barred by N.C. Gen. Stat. § 15A-1419(a)(3). This statute provides
for denial of a motion for appropriate relief if "[u]pon a previous
appeal the defendant was in a position to adequately raise the
ground or issue underlying the present motion but did not do so."
N.C. Gen. Stat. § 15A-1419(a)(3) (1999). In
State v. Fair, 354
N.C. 131, 557 S.E.2d 500 (2001), our Supreme Court, agreeing with
the analysis set out in
McCarver, stated that "'N.C.G.S. § 15A-1419
is not a general rule that any claim not brought on direct appealis forfeited on state collateral review. Instead, the rule
requires North Carolina
courts to determine whether the particular
claim at issue could have been brought on direct review.'"
Fair at
166, 557 S.E.2d at 525 (quoting
McCarver, 221 F.3d 583 (4th Cir.
2000)). Our Supreme Court has instructed that "should the
reviewing court determine the IAC claims have been prematurely
asserted on direct appeal, it shall dismiss those claims without
prejudice to the defendant's rights to reassert them during a
subsequent MAR proceeding."
Fair at
167, 557 S.E.2d at
525. In
order to determine whether a defendant is in a position to
adequately raise an ineffective assistance of counsel claim, we
stress this Court is limited to reviewing this assignment of error
only on the record before us, without the benefit of "information
provided by defendant to trial counsel, as well as defendant's
thoughts, concerns, and demeanor[,]"
Buckner at 412, 527 S.E.2d at
314, that could be provided in a full evidentiary hearing on a
motion for appropriate relief. Nonetheless, Stroud argues this
case is one of those rare cases where ineffective assistance of
counsel is shown on the face of the record on appeal.
In order to prevail on an ineffective assistance of counsel
claim, a defendant must satisfy a two-prong test. "First, he must
show that counsel's performance fell below an objective standard of
reasonableness. Second, . . . he must show that the error
committed was so serious that a reasonable probability exists that
the trial result would have been different absent the error."
State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15
(2000),
cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001)
(citing
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d
674, 693 (1984) and
State v. Braswell, 312 N.C. 553, 561-62, 324S.E.2d 241, 248 (1985)). Furthermore, in determining an objective
standard of reasonableness in the first prong of the test, the U.S.
Supreme Court has stated that because
of the difficulties inherent in making the
evaluation, a court must indulge a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
"might be considered sound trial strategy."
There are countless ways to provide effective
assistance in any given case. Even the best
criminal defense attorneys would not defend a
particular client in the same way.
Strickland at 689, 80 L. Ed. 2d at 694-95 (citations omitted). In
the case before us, Stroud is unable, on the face of the record, to
meet either of the prongs set out in
Strickland and adopted by our
Supreme Court in
Braswell.
Stroud first argues his trial counsel did not object to
substantial amounts of evidence he claims was admissible against
Edwards but not against him, nor did his trial counsel request
limiting instructions as to that evidence. However, it is not
clear from the record whether the trial court would have granted
Stroud's defense counsel's repeated requests to exclude evidence.
Consequently, Stroud's counsel, as a tactical measure, may have
refrained from continuous objections to evidence in order to avoid
alienating the jury. Furthermore, if Stroud's counsel had
requested a limiting instruction for the evidence Stroud contends
was admissible against Edwards but not against him, Stroud's
counsel possibly would have called more attention to the evidence
than it warranted.
Stroud next argues his counsel provided ineffective assistance
of counsel by not moving to sever his case from Edwards' for trial.
However, from the record, this Court is unable to determine if thisomission was ineffective, or again a tactical decision. There are
drawbacks to any defendants' cases being joined for trial - any
evidence admissible against one but not the other will still be
heard by the jury, albeit with a limiting instruction.
Nonetheless, in the case before us, anticipating much of the
evidence might be admissible on other grounds, counsel for Stroud
could have reasonably determined that Stroud's position juxtaposed
against Edwards' position was advantageous. In any event, we
cannot conclusively resolve this issue from the record. Stroud, at
this point, has "prematurely asserted" his ineffective assistance
of counsel claim and is "not in a position to adequately develop
[his IAC claim] on direct appeal."
Fair at 167, 557 S.E.2d at 525.
As both of Stroud's arguments concern potential questions of trial
strategy and counsel's impressions, an evidentiary hearing
available through a motion for appropriate relief is the procedure
to conclusively determine these issues.
As this Court is unable to find ineffective assistance of
counsel on the face of the record, we dismiss this assignment of
error without prejudice to defendant's right to file a motion for
appropriate relief.
B.
[2]Stroud next argues the trial court erred by entering
judgment on the first degree murder conviction and sentencing
Stroud to life imprisonment without parole where the indictment was
insufficient to charge first degree murder. A valid indictment
must allege all of the elements of the crime sought to be charged.
Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999);
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000).
Stroud argues the "short form" murder indictment alleges only theelements of second degree murder; the indictment does not contain
the elements of premeditation and deliberation. Therefore, Stroud
argues that the indictment was insufficient to charge him with
first degree murder.
However, these short form indictments are authorized under
N.C. Gen. Stat. § 15-144 (1999) and have been upheld by our Supreme
Court after its consideration of
Jones and
Apprendi in
State v.
Wallace, 351 N.C. 481, 528 S.E.2d 326,
cert. denied, 531 U.S. 1018,
148 L. Ed. 2d 498 (2000), and
State v. Braxton, 352 N.C. 158, 531
S.E.2d 428 (2000),
cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797
(2001). Our Supreme Court "has consistently held that indictments
for murder based on the short-form indictment statute are in
compliance with both the North Carolina and United States
Constitutions[,]" and "the short-form indictment is sufficient to
charge first-degree murder on the basis of any of the theories,
including premeditation and deliberation, set forth in N.C.G.S. §
14-17, which is referenced on the short-form indictment."
Braxton,
at 174, 531 S.E.2d at 437. Therefore, we overrule this assignment
of error.
II. Defendant Bonnie Edwards Stroud
A.
[3]Edwards first argues the trial court erred in denying her
motion to dismiss the indictment for conspiracy to commit murder
on the grounds that under North Carolina common law a husband and
wife are deemed to be one entity, and therefore, they cannot enter
into a conspiracy with one another.
Edwards first relies on the principle that a "conspiracy is
the unlawful concurrence of two or more persons in a wicked scheme
- the combination or agreement to do an unlawful thing or to do alawful thing in an unlawful way or by unlawful means."
State v.
Goldberg, 261 N.C. 181, 202, 134 S.E.2d 334, 348,
cert. denied, 377
U.S. 978, 12 L. Ed. 2d 747 (1964),
rev'd on other grounds by News
and Observer v. State; Co. Of Wake v. State; Murphy v. State, 312
N.C. 276, 322 S.E.2d 133 (1984). Furthermore, "if one person
merely feigns acquiescence in the proposed criminal activity, no
conspiracy exists between the two since
there is no mutual
understanding or concert of wills."
State v. Hammette, 58 N.C.
App. 587, 589, 293 S.E.2d 824, 826 (1982) (emphasis added). The
alleged conspiracy in
Hammette involved an undercover police
officer and the defendant. However, our Court held this conspiracy
was not possible since the two "conspirators" did not have a mutual
understanding or concert of wills.
In the case before us, Edwards combines this theory with the
common law principle that a husband and wife are one entity. As a
result, she argues a husband and wife could not have a "concert of
wills" to establish a conspiracy. Edwards argues this common law
principle has not been abolished either by our General Assembly or
our Supreme Court.
Although the issue of a criminal conspiracy between a husband
and wife was raised in
State v. Phillips, 240 N.C. 516, 82 S.E.2d
762 (1954), our Supreme Court remanded the case on other grounds
before reaching "the question whether the statutes liberating the
wife from her merged identity with the husband have abrogated the
common law rule that one spouse cannot be guilty of conspiracy with
the other spouse alone."
Id. at 521, 82 S.E.2d at 765.
But see
Combs v. Com., 520 S.E.2d 388 (Va. 1999) (upholding conspiracy
conviction between husband and wife for conspiracy to sell theirchild);
People v. Watkins, 393 N.Y.S.2d 283 (1977),
aff'd, 406
N.Y.S.2d 343,
cert. denied, 439 U.S. 984, 58 L. Ed. 2d 656 (1978)
(allowing indictment of criminal conspiracy between husband and
wife and holding spousal communication privilege does not apply
where both spouses engaged together in criminal activity);
State v.
Pittman, 306 A.2d 500, 502 (N.J. 1973) ("It is completely
unrealistic to uphold an anachronism which suggests that in this
day and age a married couple is legally incapable of engaging or
agreeing to engage in illegal enterprises and therefore do not
engage in them.");
People v. Lockett, 102
Cal. Rptr. 41 (1972);
People v. Martin, 122 N.E.2d 245, (Il. 1954). In
Com. v. Lawson,
309 A.2d 391 (Pa. 1973), a Pennsylvania court held a husband and
wife can commit criminal conspiracy and concluded there
is no reason to perpetuate the fiction that
husband and wife are one person with one will
in the eyes of the law. They are not. They
are separate individuals. Each has a distinct
personality and a will which is not destroyed
by any process of spousal fusion. Each acts
separately and should be separately
responsible for their conduct. We have so
recognized in other areas of the law. Women
should not lose their identity--or their
responsibility--when they become wives. The
status of wife or husband should not relieve
any person of one's obligation to obey the
law.
Id. at 396. While North Carolina courts have not reached this
specific issue of criminal conspiracy among a husband and wife,
other jurisdictions have, and those jurisdictions have consistently
concluded such a conspiracy can exist.
In
Burton v. Dixon, 259 N.C. 473, 131 S.E.2d 27 (1963), our
Supreme Court upheld an action against a husband and wife for civil
conspiracy. The Court cited G.S. 52-10 and G.S. 52-15 as examples
of laws where "a married woman may 'sue and be sued in the samemanner and with the same consequences as if she were unmarried.'"
Burton at 477, 131 S.E.2d at 31 (citations omitted). These
statutes were later codified as N.C. Gen. Stat. § 52-4 (1999) and
N.C. Gen. Stat. § 52-12 (1999), and both these statutes abrogate
common law rules. N.C.G.S. § 52-4 provides that
[t]he earnings of a married person by virtue
of any contract for his or her personal
service, and any damages for personal
injuries, or other tort sustained by either,
can be recovered by such person suing alone,
and such earnings or recovery shall be his or
her sole and separate property.
The common law rule provided that a recovery of the wife in court
was the property solely of the husband and, as a result, required
the husband to be joined in any action where a wife sought
recovery.
See Patterson v. Franklin, 168 N.C. 75, 84 S.E. 18
(1915) (Clark, C.J. concurring). After the enactment of N.C.G.S.
§ 52-4, a married person can sue and obtain a recovery completely
separate from his or her spouse.
N.C.G.S. § 52-12 states that "[n]o married person shall be
liable for damages accruing from any tort committed by his or her
spouse, or for any costs or fines incurred in any criminal
proceeding against such spouse." The common law rule that a
husband was responsible for the torts of his wife because "her
legal existence was incorporated in that of her husband" was
abrogated by the General Assembly.
Roberts v. Lisenbee, 86 N.C.
136, 137 (1882).
N.C. Gen. Stat. § 52-5 (1999) provides that "[a] husband and
wife have a cause of action against each other to recover damages
sustained to their person or property as if they were unmarried."
The "common law disability of the spouses to sue each other in tort
actions has been completely removed in North Carolina[.]"
Fosterv. Foster, 264 N.C. 694, 696, 142 S.E.2d 638, 640 (1965). This
disability was based on the common law theory where "the husband
and wife were considered one, - the legal existence of the wife
during coverture being merged in that of the husband, and they were
not liable for torts committed by one against the other."
Scholtens v. Scholtens, 230 N.C. 149, 150, 52 S.E.2d 350, 351
(1949) (citations omitted).
N.C. Gen. Stat. § 52-10 (1999) allows contracts between a
husband and wife without restriction, other than being consistent
with public policy. This statute also abrogated the common law
rule that husband and wife were considered the same entity. While
contracts between a husband and wife have always been recognized in
equity, at "the common law the husband and wife were regarded as so
entirely one as to be incapable of either contracting with, or
suing one another."
George v. High, 85 N.C. 99, 101 (1881).
N.C.G.S. § 52-4, N.C.G.S. § 52-5, N.C.G.S. § 52-12, and N.C.G.S. §
52-10 are all "statutes liberating the wife from her merged
identity with the husband[.]"
Phillips at 521, 82 S.E.2d at 765.
Moreover, the abrogation of the merged identity of husband and
wife has clearly been followed in federal courts and is supported
by strong public policy. The well-settled modern rule in federal
courts is that criminal conspiracy can occur between a husband and
wife.
See United States v. Dege, 364 U.S. 51, 4 L. Ed. 2d 1563
(1960). In
Dege, the Supreme Court stated that the
claim that husband and wife are outside the
scope of an enactment of Congress in 1948,
making it an offense for two persons to
conspire, must be given short shrift once we
heed the admonition of this Court that "we
free our minds from the notion that criminal
statutes must be construed by some artificial
and conventional rule," and therefore do not
allow ourselves to be obfuscated by medievalviews regarding the legal status of woman and
the common law's reflection of them.
Considering that legitimate business
enterprises between husband and wife have long
been commonplaces in our time, it would
enthrone an unreality into a rule of law to
suggest that man and wife are legally
incapable of engaging in illicit enterprises
and therefore, forsooth, do not engage in
them.
Id. at 52, 4 L. Ed. 2d at 1564 (citations omitted). To hold that
criminal conspiracy cannot exist between a husband and wife would
require us "to disregard the vast changes in the status of woman -
the extension of her rights and correlative duties - whereby a
wife's legal submission to her husband has been wholly wiped out,
not only in the English-speaking world generally but emphatically
so in this country."
Id. at 54, 4 L. Ed. 2d at 1565.
Edwards argues in her brief that our State's "common law
doctrine that a husband and wife are one entity and therefore
cannot enter into a conspiracy remains the law today; it has at no
point been abolished by statute or by ruling of the North Carolina
Supreme Court." However, we note there is no past or present
statute in this State that mandates the non-existence of criminal
conspiracy between a husband and wife and no case law that
establishes that criminal conspiracy cannot exist between a husband
and wife. In consideration of the General Assembly's history of
abrogating the common law rule of a wife's merged identity with her
husband in the enactment of various statutes; along with the
holding and reasoning of other jurisdictions, including our United
States Supreme Court, on this issue; and with no North Carolina
statute or case law prohibiting the existence of criminal
conspiracy among spouses; and in consideration of modern
sensibilities and views of the status of women, we hold that such
antiquated notions of a woman's identity found in the common law donot extend into an interpretation of the present day crime of
criminal conspiracy between a husband and wife. Therefore, a
husband and wife can enter into a criminal conspiracy between
themselves.
"It is revolting to have no better reason for
a rule of law than that so it was laid down in
the time of Henry IV. It is still more
revolting if the grounds upon which it was
laid down have vanished long since, and the
rule simply persists from blind imitation of
the past."
Dege at 53-54, 4 L. Ed. 2d at 1565 (quoting Holmes, Collected Legal
Papers, 187 (1920), reprinting The Path of the Law, 10 Harv L Rev
457, 469 (1897)). Furthermore, as former Chief Justice Walter
Clark of our Supreme Court stated in 1912:
It is true that under the decisions of
the courts made in a ruder age, not based upon
any statute, but evolved by the judges out of
their own consciousness, and termed by
euphemism "the common law," a married woman
could not recover her earnings, nor for
damages to her person, nor for her sufferings,
physical or mental, and that compensation for
all these things belonged to her husband, upon
Petruchio's theory that the wife is the
chattel or property of her husband.
. . .
Even statutes have been held obsolete and
unenforcible [sic] because of changed
conditions and the long lapse of time.
Certainly this ought to be true of decisions
which rest upon no statute and which are now
contrary to every sense of right and opposed
to the spirit of our Constitution and of the
age in which we live.
. . .
There are of course principles of the common
law which are eternally just and which will
survive throughout the ages. But this is not
because they are found in a mass of error or
were enunciated by judges in an ignorant age,
but because they are right in themselves and
are approved, not disapproved as much of the
common law must be, by the intelligence of
today.
As, however, common-law views as to the status
of women still survive among a few and are
still urged as law, it would not be amiss
should the General Assembly make such
enactment in this regard as that body may deem
just and proper. Every age should have laws
based upon its own intelligence and expressing
its own ideas of right and wrong. Progress
and betterment should not be denied us by the
dead hand of the Past. The decisions of the
courts should always be in accord with the
spirit of the legislation of to-day [sic][.]
Price v. Electric Co., 160 N.C. 450, 455-57, 76 S.E. 502, 504-05
(1912) (Clark, C.J., concurring in the result). Because we hold
that a husband and wife are capable of a criminal conspiracy, a
fundamental principle on which Edwards relies fails. Having found
a criminal conspiracy can exist between a husband and wife, this
Court need not address Edwards' further argument that the trial
court erred in admitting certain evidence under the co-conspirator
exceptions. We dismiss this assignment of error.
B.
[4]Edwards next argues the trial court erred both in failing
to impanel jurors by a system of random selection which precluded
advance knowledge of the identity of the next juror, and in
performing part of the jury selection process of separating jurors
outside the presence of Edwards and her counsel. Edwards contends
this process violated the provisions of N.C. Gen. Stat. § 15A-1214
and entitles her to a new trial. We disagree.
Stroud's counsel filed a motion for individual juror
voir dire
and sequestration of jurors on 22 December 1999 and mailed copies
of the motion to all parties involved. The motion was also served
on Edwards' counsel. Stroud requested in his motion that the jury
pool be divided up during
voir dire because it "is extremely
important in a case such as this for a juror to feel free to
candidly and honestly express their perceptions, feelings, biases,and prejudices. It would be impossible for jurors to do this if
questioned collectively in panels." Furthermore, Stroud's counsel
argued the jurors would be able to "become educated" by answers
given and would likely then answer the
voir dire questions in a
manner "so as to be excused from jury service." An order was
entered on 11 January 2000 granting the jury selection procedures
requested by Stroud. The record does not show that Edwards
objected to the jury selection procedures prior to trial.
N.C.G.S. § 15A-1214(a) provides:
The clerk, under the supervision of the
presiding judge, must call jurors from the
panel by a system of random selection which
precludes advance knowledge of the identity of
the next juror to be called.
In the case before us, the record shows the total number of people
in the potential jury pool was eighty-nine. The trial court
divided these jurors into four panels of twenty jurors and one
remaining panel of nine jurors. The one panel of nine and three
panels of twenty were removed from the courtroom and sequestered in
other areas of the courthouse. Edwards was present for the
division of the last two groups, and she was present for the entire
voir dire questioning. At the end of the division into groups,
counsel for Edwards stated, upon being questioned by the trial
court, "Yes, sir. The Defendant Bonnie Stroud consents to the
procedure
that we've agreed upon." (emphasis added). Edwards knew
the type of jury selection that had been requested and ordered.
She observed a portion of the actual division of the jury panel
into groups, and not only did she fail to object, but she expressly
consented to a procedure her counsel stated she had previously
agreed upon.
In general, when "a trial court acts contrary to a statutorymandate, the defendant's right to appeal is preser
ved despite the
defendant's failure to object during trial."
State v. Lawrence,
352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000),
cert. denied, 531 U.S.
1083, 148 L. Ed. 2d 684 (2001). However, in order to challenge the
composition of a jury panel, a defendant must satisfy the
requirements of N.C. Gen. Stat. § 15A-1211(c) (1999), which
provides that a challenge
(1) May be made only on the ground that the
jurors were not selected or drawn
according to law.
(2) Must be in writing.
(3) Must specify the facts constituting the
ground of challenge.
(4) Must be made and decided before any
juror is examined.
Edwards failed to follow the procedures set out in N.C.G.S. § 15A-
1211(c). Therefore, in "light of defendant's failure to follow the
procedures clearly set out for jury panel challenges and [her]
failure to alert the trial court to the challenged improprieties,"
Edwards has failed to preserve this issue for appeal. Braxton, 352
N.C. at 177, 531 S.E.2d at 439.
[5]Edwards further contends this process was performed
outside her presence. Again, Edwards failed to object at trial,
and we must therefore review this issue under a plain error
standard. Edwards has failed to show any prejudice as a result of
her not being present. Edwards merely speculates the State may
have unfairly completed background checks on potential jurors;
however, she offers no evidence of this behavior. Furthermore,
Edwards failed to use all of her peremptory challenges and
indicated she was satisfied with the jury chosen. A defendant
"cannot demonstrate prejudice in the jury selection process if he
does not exhaust his peremptory challenges." State v. Hyde, 352
N.C. 37, 53, 530 S.E.2d 281, 292 (2000), cert. denied, 531 U.S.1114, 148 L. Ed. 2d 775 (2001). See also N.C. Gen. Stat.
7;
15A-1214(h) (1999). Edwards knew in advance what the procedure
would be, she observed at least part of the proceedings at trial,
and she expressly consented to the procedure afterwards. Edwards'
argument that her consent is flawed since it was an after-the-fact
consent to a proceeding she did not observe is without merit, in
that Edwards admitted she had previously agreed to the system
chosen. We overrule this assignment of error.
C.
Edwards argues the "short form" murder and conspiracy
indictments violate her right to notice and right to due process
under the United States and North Carolina Constitutions. This
assignment of error is essentially the same as Stroud's second
assignment of error. Accordingly, this Court adopts the same
reasoning set out above in (I.)(B.). Therefore, we overrule this
assignment of error.
D.
Edwards next argues the trial court erred in granting the
State's motion to amend the indictment for conspiracy to add the
language of "Now known as Bonnie Edwards" following defendant's
name. However, Edwards conceded at oral argument the case law did
not support her argument, and she abandoned this argument.
Therefore, we dismiss this assignment of error.
No error in the trial of Ronnie Wesley Stroud.
No error in the trial of Bonnie Edwards Stroud.
Judge HUDSON concurs.
Judge JOHN concurs in part and dissents in part with a
separate opinion.
==============================
JOHN, J., concurring in part, dissenting in part.
I concur in the majority opinion in all respects save that
portion of section I.A. dismissing without prejudice defendant
Ronnie Wesley Stroud's ineffective assistance of counsel claim. As
to that issue, I do not read either McCarver v. Lee, 221 F.3d 583
(4th Cir. 2000), cert denied, 551 U.S. 1089, 148 L. Ed. 2d 694
(2001), or State v. Fair, 552 S.E.2d 568 (2001), as mandating that
an ineffective assistance of counsel claim, raised on direct appeal
in consequence of a defendant's calculated “decision,” id. at 593,
to do so, be reviewed by both the appellate and trial courts.
Stroud elected to pursue such claim in this Court without an
evidentiary hearing in the trial court, potentially available to
him had he filed a motion for appropriate relief in that court, and
thus has made the “decision” referred to in Fair. Id. at 593.
Indeed, he asserts in his appellate brief that “this is a rare case
in which specific instances of ineffective assistance of counsel
may be found on the face of the record on appeal.”
The majority properly considers Stroud's assertion on direct
appeal of ineffective assistance of counsel in light of the instant
record and concludes he is unable “to meet either of the prongs set
out in Strickland and adopted by our Supreme Court in Braswell.”
I join the majority's determination that Stroud's ineffective
assistance of counsel claim is without merit. See Fair at 594,
(“defendant has failed to show that his attorney's conduct rose to
the level of unreasonableness or that his attorney's conduct
prejudiced defendant's trial,” citing Strickland v. Washington, 466
U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984), and, “defendant's
ineffective assistance of counsel claims are thus without merit”).For the reasons stated herein, therefore, I respectfully dissent
from the majority's dismissal without prejudice of defendant Ronnie
Wesley Stroud's ineffective of assistance of counsel claim and vote
no error thereon.
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