STATE OF NORTH CAROLINA
v. New Hanover County
No. 99 CrS 27798
JAMES ELROY BUTLER
Roy Cooper, Attorney General, by John G. Barnwell, Assistant
Attorney General, for the State.
Staples Hughes, Appellate Defender, by Constance E.
Widenhouse, Assistant Appellate Defender, for defendant-
appellant.
WYNN, Judge.
From his conviction for first degree murder and sentence to
life imprisonment without parole, Defendant James Elroy Butler
argues on appeal that the trial court erred by (I) denying his
motion to dismiss for insufficiency of the evidence, (II)
overruling his objections to the prosecutor's improper voir dire
questioning of jurors, (III) instructing prospective jurors that
there is no distinction between direct and circumstantial evidence,
and (IV) denying his motion for a mistrial after a witness revealed
Defendant had previously been in prison. After careful review, we
find no error. At trial, the State's evidence tended to show that on the
morning of her death, Queenie Brown Ray was seen being led by
Defendant with his arm around her shoulders. Less than three hours
later, Rudy Warren discovered Ms. Ray's body next to his home in
the same area.
Although Ms. Ray had dated Defendant on and off since 1996,
witnesses testified that Ms. Ray had ended her relationship with
Defendant and was being stalked by Defendant. Ms. Ray's sister,
Lucille Jacobs, testified that Defendant admitted “he was watching
[Ms. Ray], he knew . . . when she left her house, where she went,
how long she stayed and who she saw . . ..” Ms. Jacobs testified
that she heard Defendant say nobody could have “Queenie” if he
could not have her. Elliot Thompson, rear neighbor to Ms. Ray's
mother, saw Defendant hiding in bushes near his home on several
occasions, watching the home of Ms. Ray's mother. Once Mr.
Thompson spoke with the Defendant and asked “[w]hy don't you just
let her go,” to which Defendant responded: “You don't understand.
That dirty bitch hurt me so I'm going to kill the bitch.”
Several witnesses testified that Ms. Ray told them she wanted
to end her relationship with Defendant, apparently against his
wishes. Stephan Council, Ms. Ray's boyfriend for nearly two months
prior to her death, testified that on two separate occasions,
Defendant chased him through Ms. Ray's house with a knife after
forcing his way past Ms. Ray into her home. During the week of her
murder, Defendant had knocked on her front and back doors. In
response, Ms. Ray told Defendant, “I don't want to see you no more,just go away.” Defendant left. According to Mr. Council, the
following night Ms. Ray came home scared and shaken because
Defendant had just threatened to kill her.
On the day of her death, Ms. Ray visited her mother around
dusk and was followed by Defendant, who was heard to say “I'll kill
you if you mess around with my mind.” Around 11:00 p.m., Ms. Ray
left her home promising to return by 2:00 a.m. Thereafter, she
visited with Elliot Thompson but left around 12:30 a.m. telling him
she was going to a club with her cousin. Mr. Thompson noticed
Defendant was across the street when Ms. Ray arrived at his home
and was gone when she left.
Sometime later, Rose Fanning witnessed Ms. Ray get out of a
vehicle belonging to a man named “Shakee”; however, as Ms. Ray
started across the street toward her mother's house, she was
intercepted by Defendant while he rode a bicycle. Upon hearing
Defendant and Ms. Ray begin to argue, several individuals nearby
began to walk away from the area, worried that police might be
attracted by the commotion. Ms. Fanning testified that she heard
one final “cut-off” scream as she walked away.
Defendant presented testimony from Danny Dailey who testified
that he and Defendant spent the entire night of Ms. Ray's murder
together buying and selling crack cocaine and getting high.
According to Mr. Dailey, Defendant never left his side because he
was not accustomed to street hustling. He testified that Defendant
was surprised when he heard of Ms. Ray's death and that at no point
during the night did Defendant have a bicycle. From his conviction on the charge of first degree murder,
Defendant appeals to this Court arguing first that the
circumstantial evidence presented by the State was insufficient to
sustain his conviction. We disagree.
As articulated by our Supreme Court, the test for sufficiency
of the evidence is the same whether the evidence is direct or
circumstantial.
Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when
the evidence does not rule out every
hypothesis of innocence. If the evidence
presented is circumstantial, the court must
consider whether a reasonable inference of
defendant's guilt may be drawn from the
circumstances. Once the court decides that a
reasonable inference of defendant's guilt may
be drawn from the circumstances, then it is
for the jury to decide whether the acts, taken
singly or in combination, satisfy [it] beyond
a reasonable doubt that the defendant is
actually guilty.
State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455
(citations omitted) (emphasis in original), cert. denied, 531 U.S.
890 (2000); State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61
(1991) (“The trial court's function is to determine whether the
evidence will permit a reasonable inference that the defendant is
guilty of the crimes charged”).
Thus, since circumstantial evidence can support a reasonable
inference of guilt, to defeat a motion to dismiss, the State need
only present substantial evidence of (1) each element of the
charged offense and (2) defendant being the perpetrator of such
offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868
(2002) (citations omitted). Moreover, the State may offercircumstantial evidence of Defendant's motive and opportunity to
commit the crime to demonstrate that Defendant was in fact the
perpetrator. See State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d
360, 365 (1994) (“Once the court determines that a reasonable
inference of the defendant's guilt may be drawn from the
circumstances, it is for the jury to decide whether the facts,
taken singly or in combination, satisfy them beyond a reasonable
doubt that the defendant is actually guilty. Courts making such
determinations may resort to circumstantial evidence of motive,
opportunity and capability to identify the accused as the
perpetrator of the crime”). (citations omitted).
In the instant case, the testimony of several witnesses
establishes that Defendant's jealousy motivated his murder of Ms.
Ray. For instance, Defendant's statement to Elliot Thompson that
“[t]hat dirty bitch hurt me so I'm going to kill the bitch,” is
just one such piece of evidence. Moreover, the State presented
substantial evidence of Defendant's opportunity to kill Ms. Ray;
namely, that on the night she was murdered, Defendant followed her,
intercepted her before she could get to her mother's house, and
coerced her down an empty street where she was last seen alive.
Finally, Defendant's attempt to rebut the inference that he killed
Ms. Ray with Danny Dailey's alibi testimony must fail because it is
inconsistent with the State's evidence. See State v. Taylor, 337
N.C. at 604, 447 S.E.2d at 365 (On a motion to dismiss testing the
sufficiency of the evidence, “Defendant's evidence rebutting the
inference of guilt may be considered only insofar as it explains orclarifies evidence offered by the State or is not inconsistent with
the State's evidence”) (citations omitted). In sum, although
circumstantial, the State's evidence, when taken together and in
the light most favorable to the State, supported the jury's
conclusion that Defendant perpetrated Ms. Ray's brutal murder.
Defendant next argues that, during voir dire, the prosecutor
in his case misrepresented the definition of reasonable doubt by
asking the jurors:
Do you understand that is not the State's
burden of proof, we do not have to prove this
beyond all doubt: We have to prove this
beyond a reasonable doubt. A reasonable doubt
is a doubt that comes from facts, or the lack
thereof, based on common sense and reason.
It's not a doubt based on vain and
fancifulness. It could have been that some
roving band killed Queenie Ray Brown and, in
the grand possibility, that's a possibility,
but unless it comes from the facts or the lack
thereof, that's not reasonable doubt. Do
ya'll understand that? The State does not
have to eliminate all the questions you might
have about this case. Do you understand this?
Thereafter, defense counsel objected, arguing that “to start
talking about certainties is to totally mislead the jury.” The
trial court overruled the objection, but instructed both attorneys
to frame future questions in terms of the definitions to be used in
the jury instructions. Later, the prosecutor discussed the concept
of reasonable doubt again, saying: “The fact that somebody gets
on the stand and tells you something doesn't create reasonable
doubt.” Defendant contends these statements about reasonable doubt
“suggested that something more than the testimony of one person was
required to create a reasonable doubt” and that the comments “weremisstatements of law that impermissibly lowered the state's burden
of proof.” Relying upon Cage v. Louisiana, 498 U.S. 39, 112 L.
Ed.2d 339 (1991), Defendant argues a new trial is warranted because
of the Due Process Clause violation.
As stated in State v. Roseboro, “Cage . . . dealt with
instructions the trial court gives to the jury. These cases are
not controlling here, where the statements complained of were made
by the prosecutor during jury arguments.” 344 N.C. 364, 377, 474
S.E.2d 314, 321 (1996) (citations omitted). Moreover, our Supreme
Court in Roseboro concluded the trial court's correct statement of
the law in its jury instruction on reasonable doubt meant any error
of the prosecutor in defining reasonable doubt could not have
denied the defendant due process and did not require a new trial.
Id. In this case, the record shows the trial court properly
instructed the jury on reasonable doubt prior to deliberations.
Thus, even assuming the prosecutor's comments were improperly made,
we hold that any error by the trial court in allowing the comments
was subsequently cured by the trial court's correct instructions on
reasonable doubt to the jury.
Defendant also argues that the prosecutor violated his right
to an impartial jury when he asked: “Would you be able to return
a verdict of guilty based on the case that was in part or all on
circumstantial evidence?” However, for reasons given in State v.
Teague, 134 N.C. App. 702, 705, 518 S.E.2d 573, 575-76 (1999),
appeal dismissed and cert. denied, 351 N.C. 368, 542 S.E.2d 655
(2000) (holding a prosecutor may properly question prospectivejurors about whether they would need more than circumstantial
evidence to convict), we reject this assignment of error.
Defendant next argues the trial court committed plain error by
instructing prospective jurors during voir dire that there is no
distinction between direct or circumstantial evidence and to
consider them both the same. According to Defendant, this
instruction was so prejudicial, we must grant him a new trial
despite the fact that his counsel failed to object to the
statements at trial. We disagree. Indeed, we are precluded from
addressing the merits of Defendant's argument because the trial
court's instructions to prospective jurors during voir dire are not
subject to plain error analysis. See State v. Greene, 351 N.C. 562,
566-567, 528 S.E.2d 575, 578 (2000) (the trial court's failure to
give an instruction during jury voir dire which has not been
requested is not subject to plain error review); State v. Cummings,
352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000)(the failure to object
to statements made by the other party during jury voir dire is not
subject to plain error analysis). By failing to object to the
judge's statements during voir dire, Defense counsel has failed to
properly preserve this issue for our review.
Defendant last argues the trial court erred by failing to
grant his motion for a mistrial following testimony by a witness
revealing that he had previously served time in a prison. We
disagree.
N.C. Gen. Stat. § 15A-1061 (2003) requires a trial judge to
declare a mistrial “if there occurs during the trial an error orlegal defect in the proceedings, or conduct inside . . . the
courtroom resulting in substantial and irreparable prejudice to the
defendant's case.” A trial court's decision to grant or deny a
motion for mistrial is reviewable by this Court only in cases of
gross abuse of discretion. State v. Darden, 48 N.C. App. 128, 133,
268 S.E.2d 225, 228 (1980).
We hold that Defendant has failed to carry the burden of
showing such abuse here. The record shows that the witness
inadvertently mentioned that Defendant had been in jail. However,
Defendant has failed to demonstrate the witness' statement
substantially prejudiced him. We are not persuaded, as Defendant
contends, that “this was a close case [such that] . . . evidence of
defendant's prior incarceration was likely to have tipped the
scales.” Rather, the fact that there were “no eye witnesses to the
killing” does not make this a close case in light of the State's
overwhelming, albeit circumstantial case against Defendant. We
hold that the State presented sufficient evidence to support the
jury's reasonable inference that Defendant killed Ms. Ray, as
discussed above.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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