STATE OF NORTH CAROLINA
v
.
Robeson County
No. 97 CRS 13787
No. 97 CRS 13788
No. 97 CRS 13789
No. 97 CRS 13790
No. 97 CRS 13791
No. 97 CRS 15355
LEONARD WAYNE HAIR,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Hosford & Hosford, P.L.L.C., by Geoffrey W. Hosford for
defendant-appellant.
ELMORE, Judge.
Defendant Leonard Wayne Hair appeals from judgments entered
upon jury verdicts finding him guilty of two counts of first degree
felony murder and one count each of first degree burglary, first
degree robbery with a dangerous weapon, first degree arson, and
first degree rape. For the reasons stated herein, we conclude that
defendant's trial was free of prejudicial error.
On 5 January 1998, true bills of indictment were returned
charging defendant with the murders of 57-year-old Forest SamuelBraswell (Mr. Braswell) and 78-year-old Elizabeth Baxley (Ms.
Baxley), as well as with robbery with a dangerous weapon, first
degree burglary, first degree arson, and first degree rape, arising
from events which transpired at Mr. Braswell's home in the early
morning hours of 4 June 1997. Defendant was tried at the 22
January 2002 criminal session of Robeson County Superior Court,
convicted on all counts, and received consecutive sentences of life
imprisonment without parole. Defendant filed notice of appeal on
15 February 2002.
At trial, the State's evidence tended to show that while
working as an investigator with the Lumberton Police Department,
Dan Russ (Officer Russ) was dispatched to Mr. Braswell's Lumberton
home around mid-day on 4 June 1997. Ms. Baxley also lived in the
home and assisted with cooking and cleaning. Officer Russ entered
through the back door and “noticed there had been some type of
fire” in the home. The walls were blackened, and “there was a lot
of heat inside.” The partially charred bodies of Mr. Braswell and
Ms. Baxley lay, bound and gagged, on the floor in the den. Ms.
Baxley was unclothed from the waist down. Officer Russ observed
that some of the rooms in the house had been ransacked, with
drawers pulled out of a dresser in one bedroom and their contents
emptied onto the floor. A window beside the back door had been
broken. Special Agent Neil Murphy (Agent Murphy), an arson
investigator with the State Bureau of Investigation, examined the
scene and concluded that, based on the burn patterns he observed,“an ignitable liquid of some type had been poured on the floor and
across the bodies in [the den], and ignited causing the fire.”
Dr. Thomas Clark (Dr. Clark), a forensic pathologist employed
by the State of North Carolina, performed an autopsy on Mr.
Braswell. Dr. Clark testified that he observed three blunt-force
injuries to Mr. Braswell's head, which in his opinion were
inflicted with “a hammer or object very much like a hammer with a
rounded, heavy surface.” Dr. Clark testified that, in his opinion,
Mr. Braswell died of carbon monoxide poisoning caused by smoke
inhalation, although he “could and would have” died from his head
injuries absent the fire.
Dr. John Butts (Dr. Butts), Chief Medical Examiner for the
State of North Carolina, performed an autopsy on Ms. Baxley. Dr.
Butts testified that Ms. Baxley suffered a fractured skull, broken
jaw, and other head injuries “consistent with her having been
struck with a blunt object” and “characteristic of the kind of
fracture that one sees if an individual is struck with . . . a
hammer,” and that in his opinion these injuries caused her death.
After noting bruising and tearing around and inside Ms. Baxley's
vagina and finding sperm therein, Dr. Butts collected a sexual
assault evidence kit. Special Agent Mark Boodee (Agent Boodee) of
the SBI's DNA Unit tested the sperm collected from Ms. Baxley's
vagina, compared it with a DNA sample collected from defendant, and
testified that it was “scientifically unreasonable to think that it
could have come from anyone other than” defendant. Defendant was questioned about the murders on 5 June 1997 and
subsequently left the state. Defendant was thereafter located in
South Carolina and returned to Lumberton, where he was interviewed
again by Officer Russ on 25 July 1997. During this interview
defendant gave a statement, reduced to writing by Officer Russ and
signed by defendant, which included the following: defendant and
Ricky Harden (Harden) went to Mr. Braswell's house around 7:00 p.m.
on 3 June 1997, where Mr. Braswell and Harden went into one room
and Mr. Braswell paid defendant to have sex with Ms. Baxley in
another room. Defendant and Harden then left and bought powder
cocaine and crack cocaine from local dealers, which they proceeded
to use. Defendant and Harden went to defendant's mother's house,
where they were joined by Tommy Musselwhite (Musselwhite), and
drank alcohol for awhile before deciding to drive around. After
procuring and using more drugs, defendant, Harden, and Musselwhite
drove to Mr. Braswell's house “to steal money.” Defendant dropped
Harden and Musselwhite off at Mr. Braswell's house, then parked the
car in a lot down the street and walked to Mr. Braswell's house.
Defendant entered the house and saw Mr. Braswell and Ms. Baxley
lying on the floor; Harden was tying up Mr. Braswell, and
Musselwhite was standing over them holding a hammer. Defendant
then removed several beers from the refrigerator, walked outside,
and drank them, wiping his fingerprints off the cans with his shirt
before discarding the cans in the yard. Defendant then went
through Mr. Braswell's car looking for valuables and removed a
pouch containing paperwork pertaining to the car. Harden andMusselwhite emerged from the house, each wearing socks on his
hands, with Musselwhite still holding the hammer. Defendant saw
what appeared to be flames inside the house. As defendant, Harden,
and Musselwhite walked down the street towards the car, Musselwhite
placed the hammer and the pouch defendant had taken from Mr.
Braswell's car in a storm drain. Defendant, Harden, and
Musselwhite then returned to defendant's mother's home. In a
subsequent interview on 28 July 1997, defendant told Officer Russ
that he also “went through the dresser drawers looking for
something to steal” in a bedroom, and that he went to South
Carolina after initially being questioned about the murders because
“he was running from a parole violation and also from the murders
coming down.”
Detective Johnny Barnes (Detective Barnes) of the Lumberton
Police Department testified that he collected Mr. Braswell's
driver's license and credit cards, documents and items from Mr.
Braswell's car, two socks, and a hammer from a storm drain near Mr.
Braswell's house. Special Agent Jennifer Elwell (Agent Elwell), a
forensic serologist with the SBI, testified that she performed a
DNA test on blood found on the hammer, compared it to blood samples
from Mr. Braswell and Ms. Baxley, and determined that the blood
found on the hammer was “consistent with a mixture of the two
victims[' blood].”
Detective Barnes also testified that he arrested defendant on
27 June 1996, approximately one year prior to the murders, after
Ms. Baxley reported that defendant had stolen her purse. Regardingthat incident, Detective Barnes testified that Ms. Baxley
identified defendant after he drove defendant to Mr. Braswell's
house, whereupon defendant “yelled . . . at Ms. Baxley and Mr.
Braswell that, if he went to jail, he would get both of them.”
Defendant was thereafter incarcerated until approximately three
months before Mr. Braswell and Ms. Baxley were murdered.
Defendant testified at trial, and his testimony regarding the
evening in question was generally consistent with his 25 July 1997
statement to Officer Russ. Both Harden and Musselwhite are related
to defendant's stepfather, and defendant testified he considered
them friends. Defendant testified that Harden introduced him to
Mr. Braswell when defendant was a teenager, and that defendant
thereafter went to Mr. Braswell's house “lots of times . . . [t]o
let [Mr. Braswell] perform oral sex on [defendant] for money.”
Defendant testified he met Ms. Baxley in 1996, and that Mr.
Braswell paid him to have sex with her “four or five times,”
including on 3 June 1997. Defendant admitted stealing Ms. Baxley's
purse on 27 June 1996 but denied telling Mr. Braswell and Ms.
Baxley that he would “get” them if he went to jail for it,
testifying that he instead “hollered up at Mr. Braswell . . . that,
if he didn't straighten [this] out, . . . I was going to tell about
what was going on up in . . . the house and stuff.” Defendant
testified that he was referring to sexual contact which had
occurred in Mr. Braswell's home between Mr. Braswell and young men
and boys in the neighborhood. Defendant testified that after he, Harden, and Musselwhite
returned to his mother's house following the murders, he removed,
without Harden's or Musselwhite's knowledge, a gold signet ring
inscribed with the letter “B” from Harden's car. Defendant
testified the ring had not been in the car before he, Harden, and
Musselwhite went to Mr. Braswell's house that evening. Defendant
sold the ring the next day, and later took police to the buyer's
home, where they recovered the ring. At trial, Mr. Braswell's
sister identified the ring as having belonged to her brother.
Harden and Musselwhite were each called as witnesses by
defendant, and each denied going to Mr. Braswell's house on the
night of the murders. Harden and Musselwhite each testified that
defendant's behavior the day after the murders caused them to
suspect defendant was involved, and they went together to the
police department and shared their suspicions with Officer Russ on
5 June 1997. Officer Russ testified that Harden and Musselwhite
were suspects in the investigation's early stages, but they were
eventually excluded “through alibi's [sic] and polygraphs.” The
trial court sustained defense counsel's objection and motion to
strike “as to any polygraphs” and instructed the jury to “disregard
any statement made by the witness about any polygraph.”
Defendant brings forth eight assignments of error on appeal,
asserting the trial court erred by: (1) denying defendant's motion
to dismiss the charges for insufficient evidence; (2) denying
defendant's request for a jury instruction on mere presence; (3)
admitting into evidence certain crime scene and autopsyphotographs; (4) allowing Mr. Braswell's sister to identify autopsy
photographs of the victims; (5) admitting, through Detective
Barnes' testimony, evidence of defendant's threats against the
victims following his arrest for stealing Ms. Baxley's purse in
1996; (6) having inappropriate contact with a juror during a break
in the proceedings; (7) denying defendant's motion for a mistrial;
and (8) failing to consider any mitigating factors in sentencing
defendant on the rape, arson, and robbery with a dangerous weapon
convictions. We address each of these arguments in turn.
By his first assignment of error defendant challenges the
sufficiency of the evidence presented in support of his first-
degree murder charges, arguing the State presented insufficient
evidence of his involvement in the murders. To survive a motion to
dismiss, the State must offer substantial evidence of each
essential element of the offense and substantial evidence that
defendant is the perpetrator. State v. Lee, 348 N.C. 474, 488, 501
S.E.2d 334, 343 (1998). Our appellate courts have defined
substantial evidence as “relevant evidence which a reasonable mind
could accept as adequate to support a conclusion.” Id. When
deciding whether substantial evidence exists, “the trial court must
consider the evidence in the light most favorable to the State and
give the State every reasonable inference to be drawn therefrom.”
State v. Gainey, 355 N.C. 73, 89, 558 S.E.2d 463, 474, cert.
denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002). Circumstantial
evidence may be sufficient to withstand a motion to dismiss and
support a conviction, even when the evidence does not rule outevery hypothesis of defendant's innocence. State v. Haselden, 357
N.C. 1, 18, 577 S.E.2d 594, 605 (2003). Because defendant in the
present case elected to offer evidence, he waived his motion to
dismiss made at the close of the State's evidence, and we therefore
consider only defendant's motion to dismiss made at the close of
all the evidence. State v. Pleasant, 342 N.C. 366, 373, 464 S.E.2d
284, 288 (1995).
In the present case, defendant was convicted of two counts of
first-degree murder under the felony murder rule and one count each
of first-degree burglary, first-degree robbery with a dangerous
weapon, first-degree arson, and first-degree rape. The essential
elements of first-degree felony murder are a “killing . . .
committed in the perpetration . . . of any arson, rape . . .,
robbery, . . . burglary, or other felony committed . . . with the
use of a deadly weapon.” N.C. Gen. Stat. § 14-17 (2001). Our
Supreme Court has held that a conviction for first-degree rape,
State v. Richmond, 347 N.C. 412, 431, 495 S.E.2d 677, 687, cert.
denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998), or robbery with a
dangerous weapon, State v. Covington, 290 N.C. 313, 327, 226 S.E.2d
629, 640 (1976), may properly serve as the predicate felony
supporting a felony murder conviction, so long as “the elements of
the underlying offense and the murder occur in a time frame that
can be perceived as a single transaction.” State v. Thomas, 329
N.C. 423, 434-35, 407 S.E.2d 141, 149 (1991).
“A person is guilty of rape in the first degree if the person
engages in vaginal intercourse[] . . . with another person by forceand against the will of the other person[] and[] . . . inflicts
serious personal injury upon the victim . . . .” N.C. Gen. Stat.
§ 14-27.2(a)(2)(b) (2001). Defendant's sperm was found in the
vagina of the 78-year-old Ms. Baxley, and her autopsy revealed
bruising and tearing inside and around her vagina. Dr. Butts
testified that it appeared from his examination of Ms. Baxley's
genital area that she had not “regularly engaged in sexual activity
. . . in recent years” at the time of her death. Defendant
presented no evidence to corroborate his testimony that he ever
engaged in consensual sex with Ms. Baxley, including on the night
she was killed. Viewing the evidence, as we must, in the light
most favorable to the State, we conclude that a rational trier of
fact could find that defendant raped Ms. Baxley, and that the rape
occurred as part of a single transaction with her murder.
Moreover, the essential elements of robbery with a dangerous
weapon are (1) the possession, use or threatened use of a dangerous
weapon; (2) threatening or endangering the life of a person; (3)
while taking or attempting to take personal property; (4) from
another or from a residence or any other place where there is a
person in attendance, at any time, day or night; (5) or aiding or
abetting others in the commission of such a crime. N.C. Gen. Stat.
§ 14-87(a) (2001). The State presented evidence that Mr. Braswell
and Ms. Baxley were beaten with a hammer, causing skull fractures
and other injuries which caused or contributed to their deaths, and
that the hammer was found, along with documents and other items
belonging to Mr. Braswell which defendant admitted taking, in adrainage ditch near the victims' residence. Defendant stated to
Officer Russ that he, Harden, and Musselwhite went to the victims'
residence “to steal” on the night of the murders, and the next day
defendant sold a ring which had belonged to Mr. Braswell. Viewing
this evidence in the light most favorable to the State, we conclude
that a rational trier of fact could conclude that defendant robbed
or participated in the robbery of Mr. Braswell, and that the
robbery occurred as part of a single transaction with his murder.
We hold that the State presented substantial evidence (1) of
each essential element of both first-degree rape and robbery with
a dangerous weapon, and (2) that defendant was the perpetrator of
these offenses. Because conviction of either of these offenses may
properly serve as the predicate felony supporting a felony murder
conviction, defendant's first assignment of error is overruled.
By his second assignment of error, defendant contends the
trial court erred by denying his request for a jury instruction on
mere presence. Defendant did not request a mere presence
instruction in the charge conference, nor did defendant object to
the trial court's entire charge, which included the pattern
instruction on acting in concert, prior to the jury beginning its
deliberations. Defendant's request for a mere presence instruction
came only after the jury submitted two questions to the trial court
which appeared to seek clarification on the acting in concert
instruction. The trial court denied defendant's request and re-
instructed the jury on acting in concert. Defendant renewed hisrequest for a mere presence instruction following a third jury
question, and it was again denied.
The Rules of Appellate Procedure prohibit assignment of error
to “any portion of the jury charge or omission therefrom unless
[appellant] objects thereto before the jury retires to consider its
verdict,” N.C.R. App. P. 10(b)(2) (2004), except in criminal cases
“where the judicial action questioned is specifically and
distinctly contended to amount to plain error.” N.C.R. App. P.
10(c)(4) (2004); see also State v. White, 349 N.C. 535, 570, 508
S.E.2d 253, 275 (1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d
779 (1999) (finding no error where defense counsel did not object
when given the opportunity at the charge conference or after the
charge was given). Neither defendant's argument on this issue nor
the assignment of error on which it is based “specifically and
distinctly” contend that the trial court's failure to give a mere
presence instruction was plain error, and we therefore decline to
review it.
We note, however, that the trial court's denial of defendant's
request for a mere presence instruction was not plain error. A
plain error is one so fundamental as to amount to a miscarriage of
justice or which probably resulted in the jury reaching a different
verdict than it would have reached absent the error. State v.
Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002), cert.
denied, __ U.S. __, 156 L. Ed. 2d 640 (2003). Even assuming
arguendo that the trial court's failure to give the mere presence
instruction was error, which we do not hold, “[t]he adoption of the'plain error' rule does not mean that every failure to give a
proper instruction mandates reversal regardless of the defendant's
failure to object at trial.” State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983). Moreover, “even when the 'plain error'
rule is applied, '[i]t is the rare case in which an improper
instruction will justify reversal of a criminal conviction when no
objection has been made in the trial court.'” Id. at 660-61, 300
S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L.
Ed. 2d 203, 212 (1977)). Given the presence of defendant's semen
in Ms. Baxley's vagina, the bruises and tearing around her genital
area, and defendant's possession and subsequent sale of a gold ring
belonging to Mr. Braswell the day after the murders, we are unable
to conclude that the trial court's refusal to instruct on mere
presence “tilted the scales” in favor of defendant's conviction.
State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983).
By his third assignment of error defendant identifies twenty-
seven photographs depicting the crime scene, the victims' bodies,
and their autopsies and argues the trial court erred by admitting
them into evidence, contending the photographs are so “gruesome”
and “repetitive” that the trial court abused its discretion in
failing to exclude them under N.C. Gen. Stat. § 8C-1, Rule 403
(2001). However, defendant has failed to bring forward the
challenged photographs with the record on appeal, thereby failing
to comply with the requirement that exhibits offered as evidence
and necessary for understanding the appellant's assignments of
error be filed with this Court. N.C.R. App. P. 9(d)(2) (2004). Weare therefore unable to review the challenged photographs, along
with the several which were admitted without objection, to
determine whether they are so gruesome and repetitive as to require
exclusion under Rule 403. We hold that defendant has “failed to
bring forward a record sufficient to allow proper review of this
issue and has failed to overcome the presumption of correctness at
trial,” and this assignment of error is without merit. State v.
Ali, 329 N.C. 394, 412, 407 S.E.2d 183, 194 (1991); see also State
v. Jeffries, 55 N.C. App. 269, 281, 285 S.E.2d 307, 315 (1982)
(holding trial court did not abuse its discretion in allowing
challenged photographs into evidence where none of the photographs
were filed with this Court for our review).
By his fourth assignment of error, defendant asserts the trial
court erred by admitting into evidence two autopsy photographs of
the victims through the testimony of Mr. Braswell's sister Bess
Herrington (Herrington), and by allowing Herrington to identify Mr.
Braswell and Ms. Baxley from these photographs, marked State's
exhibits one and two. Defendant argues that because Herrington
neither identified the bodies nor took the photographs in question,
admission of the challenged “gory” photographs and Herrington's
testimony identifying the victims was intended “solely to inflame
the passions of the jury early in the trial” and should have been
excluded under Rule 403. As noted above, because defendant has
failed to file the challenged photographs with this Court, he has
failed to bring forward a record sufficient to allow proper review
of the photographs and has failed to overcome the presumption thatthe trial court correctly allowed them into evidence. See N.C.R.
App. P. 9(d)(2); State v. Ali, 329 N.C. at 412, 407 S.E.2d at 194;
State v. Jeffries, 55 N.C. App. at 281, 285 S.E.2d at 315. This
assignment of error is overruled with respect to the admission of
State's exhibits one and two into evidence.
Regarding Herrington's identification of the victims through
their autopsy photographs, our review of the transcript reveals
that Herrington's testimony was very brief and was limited to her
identification of the victims and, also through photograph, of a
ring which belonged to Mr. Braswell. As Mr. Braswell's sister,
Herrington was familiar with both victims' appearance. There is no
indication on the face of the transcript that Herrington became
upset or overly emotional while testifying. Defendant concedes in
his brief that the State “could have presented these photographs
through another witness,” and both Dr. Butts and Dr. Clark, the
medical examiners who performed the autopsies, testified later in
the trial. We hold that defendant has not carried his burden by
showing that even if the trial court abused its discretion by
allowing Herrington's identification testimony, a different result
would have been reached at trial had the trial court not committed
this error. See N.C. Gen. Stat. § 15A-1443(a) (2001); State v.
Williams, 355 N.C. 501, 577, 565 S.E.2d 609, 653 (2002), cert.
denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
Defendant's fourth assignment of error is overruled.
By his fifth assignment of error, defendant contends the trial
court erred by allowing Detective Barnes to testify about the June1996 incident in which defendant was jailed for robbing Ms. Baxley
of her purse. Following voir dire on the challenged evidence, the
trial court allowed Detective Barnes to testify that after Ms.
Baxley identified defendant as the robber, defendant “yelled . . .
at Ms. Baxley and Mr. Braswell that, if he went to jail, he would
get both of them.” Detective Barnes later recorded defendant's
statement in his report on the 27 June 1996 incident. The trial
court ruled this evidence was admissible “under 404(b) for the
purpose of showing intent or proof of motive and knowledge of the
victims.”
Rule 404(b) provides that while evidence of a person's prior
bad acts is not admissible to prove character in order to show the
person acted in conformity therewith, such evidence “may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment or accident.” N.C. Gen. Stat. § 8C-
1, Rule 404(b) (2001). Our Supreme Court has characterized Rule
404(b) as a “rule of inclusion, subject to the single exception
that such evidence must be excluded if its only probative value is
to show that defendant has the propensity or disposition to commit
an offense of the nature of the crime charged.” State v. Berry,
356 N.C. 490, 505, 573 S.E.2d 132, 143 (2002) (emphasis in
original).
In the present case, the challenged evidence tended to show
that approximately one year before the murders, defendant stole Ms.
Baxley's purse and, after she identified him, threatened to “get”her and Mr. Braswell if he went to jail. Defendant was thereafter
jailed for the next several months, and Mr. Braswell and Ms. Baxley
were murdered approximately three months after defendant's release.
The medical examiners' testimony tended to show that Ms. Baxley's
blunt-force head injuries were more numerous and severe than Mr.
Braswell's, and that they were the direct cause of her death,
indicating that she was beaten more severely and giving rise to an
inference that Ms. Baxley was the killer's primary intended victim.
Based on this record, we discern no error in the trial court's
conclusion that the challenged evidence was admissible under Rule
404(b) because of its substantial probative value as to defendant's
knowledge of the victims, his intent to kill them, and his motive
for doing so.
Also by his fifth assignment of error, defendant excepts to
the trial court's ruling which prohibited defendant from cross-
examining Detective Barnes regarding defendant's explanation of
what he meant by threatening “to get” Mr. Braswell and Ms. Baxley
if he went to jail. On voir dire, Detective Barnes testified that
as they drove to the police station following Ms. Baxley's June
1996 show-up identification of defendant, defendant stated that Mr.
Braswell “was a homosexual and, if [defendant] was going to jail,
he was going to tell everything he knew on Braswell.” Detective
Barnes also recorded this statement in his report on the 27 June
1996 incident. In denying defendant's request to cross-examine
Detective Barnes about this statement, the trial court ruled that
“the intent of this evidence would be to inflame the jury inregards to [the] sexual preference of [Mr. Braswell] . . . and the
State may or may not have the opportunity to cross-examine . . .
defendant as to that statement[]. . . .” Defendant argues that
this ruling was error because it violated the common-law “rule of
completeness” codified in N.C. Gen. Stat. § 8C-1, Rule 106, and
also because it forced defendant to testify in order to explain his
statement.
“When part of a recorded statement is introduced by a party,
Rule 106, known as the 'rule of completeness,' allows an opposing
party to introduce any other part of that statement 'at that time
. . . which ought in fairness to be considered contemporaneously
with it.'” State v. Lloyd, 354 N.C. 76, 96, 552 S.E.2d 596, 612-13
(2001) (quoting N.C. Gen. Stat. § 8C-1, Rule 106 (2001)) (emphasis
added). Exclusion of evidence under Rule 106 and Rule 403 is
within the trial court's sound discretion. State v. Fowler, 353
N.C. 599, 621, 548 S.E.2d 684, 699 (2001), cert. denied, 535 U.S.
939, 152 L. Ed. 2d 230 (2002). “Abuse of discretion results where
the court's ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527
(1988).
The scope of cross-examination rests within the sound
discretion of the trial court. State v. Davis, 353 N.C. 1, 20, 539
S.E.2d 243, 257 (2000), cert. denied, 534 U.S. 839, 151 L. Ed. 2d
55 (2001). Based on this record, we cannot conclude the trial
court abused its discretion by prohibiting defendant from cross-examining Detective Barnes regarding those portions of defendant's
statements to him dealing with Mr. Braswell's alleged homosexual
activities. Moreover, defendant has cited no authority in support
of his assertion that the trial court's ruling constituted
reversible error by forcing defendant to present evidence in his
own defense, and this argument is therefore deemed abandoned.
State v. Bonney, 329 N.C. 61, 82, 405 S.E.2d 145, 157 (1991).
Defendant's fifth assignment of error is without merit.
By his sixth assignment of error, defendant asserts the trial
judge, by engaging in a brief, unrecorded conversation with a juror
during a break about a book the juror was reading, committed
reversible error. The mere occurrence of an ex parte conversation
between a trial judge and a juror does not constitute a deprivation
of any constitutional right. The defense has no constitutional
right to be present at every interaction between a judge and a
juror, nor is there a constitutional right to have a court reporter
transcribe every such communication. Rushen v. Spain, 464 U.S.
114, 125-26, 78 L. Ed. 2d 267 (1983) (Stevens, J., concurring in
judgment).
When asked about the conversation by defense counsel, the
trial judge stated as follows:
THE COURT: The conversation I had with the juror is he
was simply coming out, and I said, “Is that a good book?”
He had a book in his hand. It was a management book. He
told me some of the aspects of the book, had absolutely
nothing to do with this case, just simply inquired about
the book and whether he enjoyed the book. That's the
extent of it.
Defense counsel declined the trial judge's offer to question the
juror about the conversation. Based on this record, we conclude
that defendant has failed to meet his burden of establishing any
constitutional error. State v. Upchurch, 332 N.C. 439, 457, 421
S.E.2d 577, 587 (1992). Moreover, even assuming there was error in
the trial judge's contact with the juror, the error was harmless
beyond a reasonable doubt. Id. Defendant's sixth assignment of
error is overruled.
By his seventh assignment of error, defendant excepts to the
trial court's denial of his motion for a mistrial, made after
Officer Russ mentioned “polygraphs” in response to the prosecutor's
question concerning Officer Russ' reasons for excluding Harden and
Musselwhite as suspects. Defendant correctly notes the trial court
“must declare a mistrial upon the defendant's motion if there
occurs during the trial an error or legal defect in the
proceedings, or conduct inside or outside the courtroom, resulting
in substantial and irreparable prejudice to the defendant's case.”
N.C. Gen. Stat. § 15A-1061 (2001). However, “[w]hether a motion
for mistrial should be granted is a matter which rests in the sound
discretion of the trial judge, and a mistrial is appropriate only
when there are such serious improprieties as would make it
impossible to attain a fair and impartial verdict under the law.”
State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982)
(internal citations omitted). Every reference to a polygraph does
not necessarily result in prejudicial error requiring a mistrial.
State v. Montgomery, 291 N.C. 235, 244, 229 S.E.2d 904, 909 (1976). The transcript in the present case reveals the following
exchange between the prosecutor and Officer Russ:
Q. Likewise, you talked to Tommy Musselwhite and Ricky
Harden?
A. Yes, sir.
Q. Were they suspects in the early stages of this
investigation?
A. Yes, sir.
Q. Were they eventually excluded?
A. Yes, sir.
Q. Can you tell us why?
A. They were excluded through alibi's [sic] and
polygraphs.
MR. THOMPSON: Well ---
Q. Did you ----
MR. THOMPSON: ---- object and move to strike as to
any polygraphs.
THE COURT: Objection sustained. Members of the
jury, disregard any statement made by the witness about
any polygraph.
The prosecutor then continued his re-direct examination of Officer
Russ and called two more witnesses before defendant moved for a
mistrial the following day.
Based on this record, we are unable to conclude that the trial
court abused its discretion by failing to find that defendant
suffered substantial and irreparable prejudice from Officer Russ'
mention of “polygraphs” in his testimony and denying defendant's
motion for a mistrial. The trial court granted defendant's motion
to strike that portion of Officer Russ' testimony, gave a curativeinstruction, and offered to give an additional instruction if
requested by defendant to do so. Jurors are presumed to heed a
trial judge's cautionary instruction to disregard all testimony
about a polygraph. State v. Rogers, 355 N.C. 420, 452-53, 562
S.E.2d 859, 880 (2002). Defendant's seventh assignment of error is
without merit.
Defendant's brief contains a heading purporting to bring forth
an eighth assignment of error. However, because defendant's brief
contains no reason or argument in support thereof, we deem this
assignment of error to be abandoned. See N.C.R. App. P. 28(b)(5)
(2004).
No prejudicial error.
Judges TIMMONS-GOODSON and HUNTER concur .
Report per Rule 30(e).
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