Appeal by defendants from judgments entered 12 August 2003 by
Judge Gary E. Trawick in Robeson County Superior Court. Heard in
the Court of Appeals 16 February 2005.
Attorney General Roy Cooper,
by Special Deputy Attorney
General
James P. Longest, Jr.
, for the State.
Bruce T. Cunningham, Jr. for defendants-appellants.
GEER, Judge.
Defendants Charles Melvin Campbell and Richard Clayton
Campbell appeal from their first degree murder conviction. On
appeal, defendants argue that the trial court erred (1) by telling
the jury that the State was not seeking the death penalty and (2)
by imposing a life sentence when the jury did not make the findings
required in capital murder cases under Enmund v. Florida, 458 U.S.
782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982) and Tison v.
Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1987).
Based on our review of the record, we hold that defendants received
a trial free from prejudicial error.
The State's evidence tended to show the following. On the
afternoon of 12 February 1999, Marshall McRae was in his front yard
with his 15-year-old daughter Deana and his six-year-old son. A
black Yukon started to pull into the McRaes' driveway, but then
swerved back onto the road and drove away. Minutes later, however,
as the McRaes were about to leave in their Jeep, the black Yukon
pulled back into the driveway.
A man on the passenger side jumped out, ran towards the Jeep,
and pointed a gun in Deana's and her father's direction. Three
other men then exited the Yukon, all holding guns and pointing them
at the family. Deana identified the driver of the Yukon as
defendant Charles Campbell and two of the passengers as defendant
Richard Campbell and Timothy Campbell. She did not recognize the
fourth man.
Timothy Campbell demanded "papers" from Mr. McRae, although
Mr. McRae indicated that he did not understand. Charles Campbell
stated, "[d]on't nobody shoot until I say shoot." He then got into
the Jeep with Deana and her brother while holding a hand grenade in
one hand and a gun in the other. He threatened to kill both
children.
At that point, another man, Galand Leek, drove up and jumped
out of his car; he was also armed. Mr. McRae began running away
from the Jeep. Charles Campbell jumped out of the Jeep and told
the other four men "to get" Mr. McRae. As the men ran, they began
shooting. Mr. McRae was struck and fell to the ground. Accordingto Deana McRae, at that point, Charles Campbell was closest to her
father, but she also saw Richard and Timothy Campbell and Leek
point their guns at her father. Charles Campbell yelled, "Let's
go. Let's go," and the men all drove off. Mr. McRae had been
killed by a gunshot wound to the right, upper chest.
Charles Campbell was indicted for first degree murder by
"aiding, abetting and acting in concert with Timothy Joshuar
Campbell, Richard Clayton Campbell and others" in the murder "with
malice aforethought" of Marshall McRae. Richard Campbell was also
charged with first degree murder, with the indictment alleging that
he "willfully and feloniously did with malice aforethought kill and
murder Marshall McRae . . . ." After the trial court found that
Charles Campbell was ineligible to receive the death penalty due to
mental retardation, the State moved to consolidate the two cases.
Defendants were tried before Judge Gary E. Trawick beginning 21
July 2003. On 12 August 2003, the jury found both defendants
guilty of first degree murder, and they were sentenced to life in
prison without possibility of parole.
Defendants first contend that the trial court erred by
informing the jury that the State was not seeking the death
penalty. Specifically, immediately prior to jury selection, the
trial judge explained to the jury pool:
I want you to understand this that, while I
told you that the Defendants are being charged
with murder, this is not a capital case. And
this is not a case in which at some point that
you're going to be asked to determine whether
the sentence _ what the appropriate sentenceis, whether the sentence is a life sentence or
a death sentence. This is not going to be one
of the issues that comes before you. So I
want you to understand that to start with. I
understand that some of you may have a
position or so forth on the death penalty.
That's not going to be an issue in this case,
so you should not concern yourself with
whatever feelings or animosities you have
about that.
Because defendants did not object to the trial judge's statement,
it is reviewable only for plain error. N.C.R. App. P. 10(c)(4).
"In deciding whether a defect in the jury instruction constitutes
'plain error,' the appellate court must examine the entire record
and determine if the instructional error had a probable impact on
the jury's finding of guilt."
State v. Odom, 307 N.C. 655, 661,
300 S.E.2d 375, 378-79 (1983).
Defendants argue that the court's instructions would make it
easier for the jury to convict defendants because the jury would
know that the death penalty was not an option and also because they
would conclude that defendants had already received a concession
from the State. We disagree.
Our Supreme Court has held that ordinarily "the trial
judge
should not inform the jurors as to punishment in noncapital cases."
State v. Rhodes, 275 N.C. 584, 592, 169 S.E.2d 846, 851 (1969).
Nevertheless, "[i]t does not follow, however, that instructions
disclosing the punishment authorized by statute will always
constitute prejudicial error. The propriety and effect of such an
instruction must be considered in the light of the circumstances of
the trial . . . ."
Id. at 588, 169 S.E.2d at 848 (internal
quotation marks omitted). In this day and age, a potential jurorin a first degree murder trial may well assume that the issue of
the death penalty will arise. By advising a jury pool that a case
will be tried non-capitally, the trial court is appropriately
focusing the potential juror's attention on the crime and diverting
it from potential concerns about having to impose a death sentence
_ precisely the reason for the general rule set out in
Rhodes.
Id.
We believe that the trial court's remarks to the jury made prior to
jury selection were intended to and likely did remove from the
potential jurors' minds extraneous concerns that may have
interfered with proper jury selection. Accordingly, we find no
error.
Alternatively, defendants argue that the principles set out in
Enmund and
Tison should apply to cases involving life sentences
without possibility of parole. Under
Enmund/Tison, the Eighth
Amendment prohibits imposition of the death penalty for a defendant
"who aids and abets in the commission of a felony in the course of
which a murder is committed by others, when the defendant does not
himself kill, attempt to kill, or intend that a killing take place
or that lethal force will be employed."
State v. McCollum, 334
N.C. 208, 223, 433 S.E.2d 144, 151 (1993),
cert. denied, 512 U.S.
1254, 129 L. Ed. 2d 895, 114 S. Ct. 2784 (1994).
This Court has recently held that "[b]oth
Enmund and
Tison
involved proportionality review of death sentences. Our review of
North Carolina Supreme Court cases discussing
Enmund and
Tison
fails to disclose any application in non-capitally tried cases."
State v. Hightower, __ N.C. App. __, __, 609 S.E.2d 235, 241 (2005)(internal citations omitted). The Court concluded: "On the facts
at bar, defendant has failed to show any basis to extend the
application of [the
Enmund/
Tison] factors to a non-capital verdict
and judgment."
Id. Likewise, in this case, defendants have
offered no persuasive argument to extend
Enmund and
Tison to
encompass the facts of this non-capital case.
No error.
Judges MCGEE and TYSON concur.
Report per Rule 30(e).
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