An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-384

NORTH CAROLINA COURT OF APPEALS

Filed: 19 April 2005

STATE OF NORTH CAROLINA

v .                         Moore County
                            No. 01 CRS 051438
JOSHUA T. BROWN

    Appeal by defendant from judgment entered 31 July 2003 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 7 December 2004.

    Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

    Bruce T. Cunningham, Jr., for defendant-appellant.

    TYSON, Judge.

    Joshua T. Brown (“defendant”) appeals from judgment entered after a jury found him to be guilty of first-degree murder of Ingeborg Cossell (“Mrs. Cossell”). We find no error.

I. Background
    Defendant met fourteen-year-old Barbara Cossell in 1999 when he was eighteen years old. Barbara is the daughter of James Cossell and Mrs. Cossell. Defendant and Barbara dated until Spring 2001. At that time, the Cossells planned to move to Germany. Defendant intended to also move to Germany to continue dating Barbara.
    On 14 May 2001, defendant stayed at the Cossells' home and slept on their couch. The next morning after Barbara left forschool, defendant and Mrs. Cossell were alone in the home. Defendant and Mrs. Cossell talked, and she explained to him that although she knew defendant loved her daughter, she did not “think it was going to work out” between them. She asked defendant to leave. Defendant responded, “Okay.”
    Mrs. Cossell walked toward the door to let defendant out. Defendant got up from the couch, grabbed a butcher knife off of the kitchen counter, and attacked Mrs. Cossell. Defendant stabbed her eight times in her back, neck, and forehead. Mrs. Cossell was cut numerous times across her face, arms, and body as she tried to defend herself. Mrs. Cossell collapsed onto the floor. Defendant grabbed a mop handle and struck Mrs. Cossell in the head until the mop handle broke. Defendant grabbed a broom handle and continued to strike Mrs. Cossell in the head multiple times. After Mrs. Cossell stopped moving, defendant dragged her to the master bedroom and dumped her body upside down in the closet.
    Two days later on 16 May 2001, Barbara called the police to report her mother missing. Officer Timothy Blake (“Officer Blake”) responded to the call and drove to the Cossells' home. Barbara, her younger sister, Madeleine, and defendant were at the Cossells' home. Officer Blake conducted a quick search of the house and observed red stains on the floors, walls, and ceiling. Defendant left the Cossells' home.
    Detective Timothy Davis (“Detective Davis”) arrived at the scene with several other police officers. Detective Davis spoke with Mr. Cossell on the phone. He asked Detective Davis to protecthis daughters from defendant. Detective Davis drove Barbara and Madeleine back to the Sheriff's Office, passing defendant along the way. Defendant followed Detective Davis's car to the Sheriff's Office and met them there. Officer Davis approached defendant and asked if he could answer some questions. Defendant agreed.
    Defendant became increasingly nervous during his conversation with Detective Davis, particularly after being asked about cuts on his hands. After several minutes of questioning, defendant asked to speak with Barbara. Detective Davis agreed under the condition that he be present. Barbara was brought in and knelt before defendant. She asked if he had anything to say to her. Defendant responded, “Barbara, I'm sorry but I killed your mother.”
    On 30 July 2001, defendant was indicted for first-degree murder by the Grand Jury of Moore County. The case was tried capitally by jury during the 21 July 2003 session of Moore County Superior Court. Defendant did not testify, but offered evidence through testimony of the lead investigating officer, his mother, and a treating psychiatrist. At the close of all the evidence, the jury returned a verdict of guilty of first-degree murder. During the sentencing phase, the jury declined to impose the death penalty and defendant was sentenced to life imprisonment without parole. Defendant appeals.
II. Issues
    The issues on appeal are whether: (1) the trial court's jury instruction concerning premeditation and deliberation was properly given; (2) defendant's constitutional rights were violated byhaving an elected official preside over a highly publicized trial; and (3) the removal of potential grand jurors was proper.
III. Premeditation and Deliberation Jury Instruction
    Defendant argues the trial court erred in denying his request for a modified jury instruction on premeditation and deliberation and charging the jury on that issue using the North Carolina Pattern Jury Instructions. We disagree.
    Defendant requested the following jury instruction:
        Neither premeditation nor deliberation are usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred or the lack of such circumstances, such as any prior hostile relationship between the defendant and the victim, whether the defendant brought to the scene a deadly weapon as opposed to using a weapon of opportunity, any condition of the defendant tending to diminish the capacity of the defendant to premeditate and deliberate his actions, any provocation or exchange taking place between the victim and defendant immediately before the killing, the conduct of the defendant before and after the killing tending to show a plan by the defendant to effectuate and conceal the killing, and the nature of the wounds inflicted on the victim.

(Emphasis supplied). Defendant based his request on: (1) there was no evidence a weapon was brought to the home, opposed to defendant using a weapon of opportunity; (2) there was no indication defendant planned the murder; and (3) the grossly excessive force of the stabbing could show a lack of premeditation and deliberation.
    Our Supreme Court addressed a similar issue in State v. Leach, 340 N.C. 236, 456 S.E.2d 785 (1995). There, the defendant contended, “the trial court erred by instructing the jury that whendeciding whether the killing was done with premeditation and deliberation, it could consider whether: (1) the defendant used grossly excessive force, or (2) the circumstances of the murder were brutal or vicious.” Id. at 241, 456 S.E.2d at 788. The defendant in Leach argued the evidence did not support either circumstance and the instruction was prejudicial. Id.
    The Court concluded otherwise, holding:
        This instruction is based upon the North Carolina Pattern Instructions. N.C.P.I. _ Crim. 206.10 (1989). This Court said in State v. Weathers, 339 N.C. 441, 451 S.E.2d 266 (1994), that “'[t]he elements listed [in this pattern jury instruction] are merely examples of circumstances which, if found, the jury could use to infer premeditation and deliberation. It is not required that each of the listed elements be proven beyond a reasonable doubt before the jury may infer premeditation and deliberation.'” Id. at 454, 451 S.E.2d at 273 (quoting State v. Cummings, 326 N.C. 298, 315, 389 S.E.2d 66, 76 (1990)).

        The instruction in question informs a jury that the circumstances given are only illustrative; they are merely examples of some circumstances which, if shown to exist, permit premeditation and deliberation to be inferred. The instruction tells jurors that they “may” find premeditation and deliberation from certain circumstances, “such as” the circumstances listed. The instruction does not preclude a jury from finding premeditation and deliberation from direct evidence or other circumstances; more importantly, it does not indicate to the jury that the trial court is of the opinion that evidence exists which would support each or any of the circumstances listed.

Id. at 241-42, 456 S.E.2d at 788-89.
    North Carolina statutes and case law do not require a trial court to use the exact words a defendant requests to charge thejury. State v. Vause, 328 N.C. 231, 239, 400 S.E.2d 57, 63 (1991). But, “when the request is correct in law and supported by the evidence, the court must give the instruction in substance.” State v. Ball, 324 N.C. 233, 238, 377 S.E.2d 70, 73 (1989).
    The trial court's instruction to the jury on premeditation and deliberation stated:
        Fourth, that the defendant acted with premeditation - that is, that he formed the intent to kill the victim over some period of time, however short, before he acted.

        And, fifth, that the defendant acted with deliberation, which means that he acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion.

        If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.

        Neither premeditation nor deliberation are usually susceptible of direct proof. They must be proved by circumstances from which they may be inferred, such as the lack of provocation by the victim; conduct of the defendant before, during, and after the killing; use of grossly excessive force; brutal or vicious circumstances of the killing; manner in which or the means by which the killing was done.

        Members of the jury, you may also consider any evidence of any condition of the defendant tending to diminish the capacity of the defendant to premeditate and deliberate his actions.

(Emphasis supplied).
    The main distinction between defendant's requested jury instruction and that given by the trial court involves the “weaponof opportunity” language. Defendant contends that phrase would have allowed the jury to consider the fact that defendant did not bring a knife to the house, rather he used one from the kitchen in opposition to premeditation and deliberation.
    A jury instruction must be viewed in its entirety when considering any prejudicial effect. State v. Boykin, 310 N.C. 118, 125, 310 S.E.2d 315, 319 (1984) (citations omitted). “If the entire instruction is an accurate statement of the law, one isolated piece that might be considered improper or wrong on its own will not be found sufficient to support reversal.” State v. Roache, 358 N.C. 243, 311, 595 S.E.2d 381, 424 (2004); State v. Jones, 294 N.C. 642, 243 S.E.2d 118 (1978). “Where the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous affords no grounds for a reversal.” Jones, 294 N.C. at 653, 243 S.E.2d at 125; State v. Hall, 267 N.C. 90, 147 S.E.2d 548 (1966). Technical errors which are not substantial and which could not have affected the result will not be held prejudicial. State v. Gatling, 275 N.C. 625, 170 S.E.2d 593 (1969); State v. Norris, 242 N.C. 47, 86 S.E.2d 916 (1955).
    The phrase “weapon of opportunity” was but one of several examples provided to illustrate to the jury what constitutes premeditation and deliberation. See Weathers, 339 N.C. at 454, 451 S.E.2d at 273. The fact that the trial court denied defendant's request to include that language does not equate to an improper jury instruction. The excerpt from the North Carolina Pattern JuryInstructions the trial court used required the State to prove the elements of first-degree murder beyond a reasonable doubt. Leach, 340 N.C. at 241, 456 S.E.2d at 788-89. Defendant received and utilized several opportunities to present his theory and arguments against premeditation and deliberation to the jury, including his “weapon of opportunity” defense.
    In addition, the trial court instructed the jury to “also consider any evidence of any condition of the defendant tending to diminish the capacity of the defendant to premeditate and deliberate his actions.” The jury received sufficient instructions and evidence to permit them to determine whether or not defendant's actions showed premeditation and deliberation. Defendant used multiple weapons during his assault on and murder of Mrs. Cossell. The exclusion of defendant's requested language from the jury instruction was not error. This assignment of error is overruled.
IV. Impartial Judge
    Defendant filed a motion to strike death penalty on 23 July 2002 asserting his rights under the Sixth, Eighth, and Fourteenth Amendments to the United State Constitution would be violated if: (1) an elected superior court judge presided over his capital murder case; and (2) a potential death sentence would be reviewed by elected Supreme Court Justices. Defendant assigns error to the trial court's denial of this motion and argues his due process rights were violated when a “local elected official” presided as judge over his highly-publicized trial. We disagree.    Defendant was found guilty of first-degree murder, a Class A Felony. During the sentencing phase, the jury found both aggravating and mitigating factors and consequently rejected the death penalty. Defendant was sentenced to life imprisonment without parole. In light of the sentence defendant received, his assignment of error and appeal from the denial of his motion to strike death penalty is moot. See In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979) (when relief sought is no longer at issue, courts “will not entertain or proceed with a cause merely to determine abstract propositions of law”).
    In addition, our Supreme Court has repeatedly held that our capital punishment system under N.C. Gen. Stat. § 15A-2000 is constitutional. State v. Bell, 359 N.C. 1, 47, 603 S.E.2d 93, 123 (2004) (citations omitted). A jury of defendant's peers decided whether defendant's crime warranted a death sentence, not an elected trial or appellate judge(s) or justices. See State v. Prevatte, 356 N.C. 178, 262, 570 S.E.2d 440, 486 (2002) (citing State v. Barfield, 298 N.C. 306, 351-52, 259 S.E.2d 510, 542 (1979) (“No defendant may be sentenced to death unless and until the jury finds at least one statutory aggravating circumstance to exist beyond a reasonable doubt which outweighs any mitigating circumstance in a sufficiently substantial manner so as to call for the death penalty.”)).
    Defendant did not seek recusal of the trial judge from his case under the standards for recusal or disqualification of a judgein a criminal trial that are set out in section 15A-1223 of the North Carolina General Statutes and Canon 3(c) of the Code of Judicial Conduct. N.C. Gen. Stat. § 15A-1223(b) (2003) (providing that “[a] judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is: (1) Prejudiced against the moving party or in favor of the adverse party”); Canon 3(c) of the Code of Judicial Conduct, (providing that “a judge should disqualify himself in a proceeding in which his impartiality may reasonably be questioned”); State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993) (“The burden is on the party moving for recusal to 'demonstrate objectively that grounds for disqualification actually exist.'”); State v. Honaker, 111 N.C. App. 216, 219, 431 S.E.2d 869, 871 (1993) (“Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice, or interest on the part of the judge that he would be unable to rule impartially.”).
    Finally, defendant did not move for or present evidence to support a change of venue under N.C. Gen. Stat. § 15A-957 (2003) due to “so great a prejudice against the defendant that he cannot obtain a fair and impartial trial . . . .” Defendant did not avail himself of the opportunities and procedures available to challenge or seek recusal of the trial judge or seek a change of venue. See N.C.R. App. P. 10(b)(1) (2004). This assignment of error is dismissed.
V. Bill of Indictment
    Defendant argues the trial court erred in denying his motion to dismiss the indictment due to a clerk of court, not a judge, “culling” the Grand Jury venire. We disagree.
    N.C. Gen. Stat. § 15A-622(a) (2003) states in part, “[t]he mode of selecting grand jurors and of drawing and impaneling grand juries is governed by this Article and Chapter 9 of the General Statutes, Jurors.” N.C. Gen. Stat. § 9-6(b) (2003) provides:
        Pursuant to the foregoing policy, each chief district court judge shall promulgate procedures whereby he or any district court judge of his district court district designated by him, prior to the date that a jury session (or sessions) of superior or district court convenes, shall receive, hear, and pass on applications for excuses from jury duty. The procedures shall provide for the time and place, publicly announced, at which applications for excuses will be heard, and prospective jurors who have been summoned for service shall be so informed. In counties located in a district or set of districts as defined in G.S. 7A-41.1(a) which have a trial court administrator, the chief district judge may assign the duty of passing on applications for excuses from jury service to the administrator. In all cases concerning excuses, the clerk of court or the trial court administrator shall notify prospective jurors of the disposition of their excuses.

    Our Supreme Court held in State v. Leary that N.C. Gen. Stat. § 9-6 “places the process of juror excusals within the discretion of the district court judge.” 344 N.C. 109, 118, 472 S.E.2d 753, 758 (1996). “[A] defendant is not entitled to a new trial for improper jury excusals in the absence of evidence of corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned.” Id. (citing State v. Murdock, 325 N.C. 522, 526, 385 S.E.2d 325, 327 (1989)).    Here, the trial judge sent the clerk of court a memorandum entitled, “Policies for Jury Excuses and Deferrals.” The memo detailed the factors the clerk of court should consider upon receipt of prospective juror's requests for excuses or deferrals.
    Our review of defendant's argument and the entire record fails to disclose defendant's reference to any evidence or citation to authority showing the trial judge exhibited “corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned.” Leary, 344 N.C. at 118, 472 S.E.2d at 758. Defendant has failed to show any prejudice by this procedure or that he deserves a new trial based on an invalid indictment. This assignment of error is overruled.
VI. Conclusion
    The trial court properly instructed the jury on the elements of premeditation and deliberation for the charge of first-degree murder. Defendant's argument that an elected judge would be presiding over or reviewing his death sentence is dismissed as he did not receive the death penalty and he neither availed himself of available procedures to recuse the presiding or reviewing judges on his case nor sought a change of venue. Defendant was not prejudiced by the trial judge's policy on how to consider requests for excuses and deferrals by prospective grand jurors. Defendant received a fair trial by a jury of his peers before an able judge that was free from error.
    No error.
    Judge MCGEE concurs.    Judge WYNN concurs by separate opinion.
    Report per Rule 30(e).
NO. COA04-384

NORTH CAROLINA COURT OF APPEALS

Filed: 19 April 2005

STATE OF NORTH CAROLINA

v .                         Moore County
                            No. 01 CRS 051438
JOSHUA T. BROWN

    
    WYNN, Judge concurring in a separate opinion.
    I join in the majority opinion but write separately to address Defendant's “first impression” assignment of error which states:
        III. THE DUE PROCESS RIGHT OF A DEFENDANT IN A HIGHLY PUBLICIZED CAPITAL CASE TO A TRIAL PRESIDED OVER BY A JUDGE WHO IS IMPARTIAL IN APPEARANCE, AS WELL AS IN FACT, IS VIOLATED WHEN THE JUDGE IS THE RESIDENT JUDGE IN THE COUNTY IN WHICH THE CRIME OCCURRED AND IS SUBJECT TO POPULAR ELECTION TO RETAIN HIS POSITION.

In essence, Defendant “contends that Judge Howard R. Greeson, Jr. erred in denying his Motion to Strike the Death Penalty because his highly publicized capital case was tried before a local Moore County judge [Judge James M. Webb] who, under North Carolina law, is subject to popular election to retain his position as a judge.” (Defendant's brief p. 11). The majority points out that Defendant received a sentence of life imprisonment without parole and concludes that the appeal from the denial of his Motion to Strike Death Penalty is moot. But Defendant argues in his brief that
        There were still many other discretionary decisions presented to Judge Webb that had an impact on the trial. . . . the most important of these was the decision whether to dismissfirst degree murder. A decision in the defendant's favor on that issue would have had the practical effect of removing the death penalty from consideration. To a voting public unversed in the law, it would make little difference if the possibility of the death penalty was removed because Judge Webb found insufficient evidence to support the one aggravator or insufficient evidence of premeditation.

(Defendant's brief p. 21).
    Defendant, however, presents no support for the proposition that all local judges should be removed from death penalty cases because of their method of selection, i.e. popular election.   (See footnote 1)      The United States Supreme Court addressed the tension between a popularly elected judiciary and the attainment of an independent, unbiased judiciary in White, 536 U.S. 765, 153 L. Ed. 2d 694 (Minnesota Code of Judicial Conduct Cannon “announce clause,” which prohibited a judicial candidate from “announcing his or her views on disputed legal or political issues[,]” violated the free speech rights of judicial candidates).
        [E]lected judges -- regardless of whether they have announced any views beforehand -- always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue. So if, as Justice Ginsburg claims, it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then -- quite simply -- the practice of electing judges is itself a violation of due process. It is not difficult to understand how one with these views would approve the election-nullifying effect of the announce clause. They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted . . ..

Id. at 782-83, 153 L. Ed. 2d at 709-10 (emphasis added). Thus, under the plurality view in White, having an elected judge preside over a highly publicized case does not violate a defendant's Due Process rights.
    Moreover, Defendant crystalizes this issue by asserting that trial by a local judge subject to popular election violates his due process rights even if the judge is “one who is impartial in appearance, as well as in fact.” Defendant did not seek recusal ofthe trial judge from this case under the standards for recusal or disqualification of a judge in a criminal trial that are set out in section 15A-1223 of the North Carolina General Statutes and Cannon 3(C) of the Code of Judicial Conduct. N.C. Gen. Stat. § 15A- 1223(b) (2004) (providing that “A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is: (1) Prejudiced against the moving party or in favor of the adverse party[.]”); Cannon 3(C) of the Code of Judicial Conduct, (providing that “a judge should disqualify himself in a proceeding in which his impartiality may reasonably be questioned[.])”; see also State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993) (“The burden is on the party moving for recusal to 'demonstrate objectively that grounds for disqualification actually exist.'” (citation omitted); State v. Honaker, 111 N.C. App. 216, 219, 431 S.E.2d 869, 871 (1993) (“Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.”).
    In sum, Defendant neither sought nor argued a basis for recusal of the trial judge under section 15A-1223 of the North Carolina General Statutes and Cannon 3(C) of the Code of Judicial Conduct. Nonetheless, Defendant expresses well-placed concerns regarding the selection of judges by popular election in North Carolina. White, 536 U.S. at 788-89, 153 L. Ed. 2d at 713 (O'Connor, J., concurring). But dispositively in this case,because Defendant fails to show evidence to support his claim that his due process rights were violated when he was tried before a popularly elected local judge, this assignment of error is without merit.


Footnote: 1
    
More correctly stated, Defendant presents no precedential support for his proposition. But there is considerable concern regarding this issue as voiced by Justice O'Connor in Republican Party of Minn. v. White:

        We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case.

536 U.S. 765, 788-89, 153 L. Ed. 2d 694, 713 (2002) (O'Connor, J., concurring). Regarding fundraising by judges, Justice O'Connor expressed further concern that,

        relying on campaign donations may leave judges feeling indebted to certain parties or interest groups . . .. Even if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary.

Id. at 790, 153 L. Ed. 2d at 714 (O'Connor, J., concurring).

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