An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-322


Filed: 17 May 2005

                            Robeson County
v .                         Nos. 99 CRS 3066    
                                99 CRS 3306

    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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