STATE OF NORTH CAROLINA
v
.
Guilford County
No. 03 CRS 097521
DAYTON WAYNE PITTER
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
appellant.
CALABRIA, Judge.
Dayton Wayne Pitter (“defendant”) appeals from judgment
entered upon a jury verdict finding him guilty of first-degree
murder. We find no prejudicial error.
At trial in Guilford County Superior Court, the State
presented the following evidence: on 14 September 2003, at
approximately 1:30 a.m., Bruce Lamont Meadows (“Mr. Meadows”), the
victim, entered a residence at 629 Watson Street, Greensboro, North
Carolina. Shortly after entering the residence, Mr. Meadows was
shot and killed. Joshua Sumner (“Mr. Sumner”), an informant to Officer T.A.
Griffiths (“Officer Griffiths”) of the Greensboro Police
Department, testified that he knew defendant because he had
purchased drugs from defendant on several occasions. Mr. Sumner
also testified that he gave defendant's cell phone number to
Officer Griffiths during September 2003 and informed Officer
Griffiths of defendant's whereabouts. Mr. Sumner testified that
the day before Mr. Meadows was killed, defendant approached Mr.
Sumner and his brother and told them about a phone call defendant
had received from Officer Griffiths. Defendant questioned Mr.
Sumner asking him if he knew how Officer Griffiths had obtained
defendant's cell phone number. Mr. Sumner testified that defendant
indicated he thought either Mr. Sumner, Mr. Sumner's wife, or Mr.
Meadows had given his number to Officer Griffiths. Mr. Sumner
further testified that during their conversation, defendant pulled
a gun out of his pocket. While holding the gun, defendant told Mr.
Sumner that if he discovered who was responsible for giving Officer
Griffiths his cell phone number, he would kill that person. Mr.
Sumner denied any knowledge of how Officer Griffiths obtained
defendant's number.
Cameron D. Stevens Sumner (“Mrs. Sumner”), Mr. Meadows's
cousin, testified that on 14 September 2003 at approximately 12:00
a.m., she, Mr. Meadows, and Lamar Rashaad Johnson (“Johnson”) were
driving to her mother's house when Mr. Meadows asked to stop at 629
Watson Street. Upon their arrival, Mrs. Sumner and Mr. Meadows got
out of the car to go into the residence while Johnson remained inthe car. As they walked towards the door, Mrs. Sumner stopped to
put on her shoes. Mr. Meadows continued towards the door and
entered the front door of the residence. Before Mrs. Sumner was
able to enter the residence, the door was closed behind Mr.
Meadows. As Mrs. Sumner approached to open the door, she heard
the sound of a gunshot. She quickly opened the door and as she
did, she saw Mr. Meadows stumble to the side, fall backwards
against the wall, and slide to the floor.
Clifton Pratt (“Pratt”), an eyewitness, testified that on 14
September 2003 he went to 629 Watson Street to buy drugs from the
defendant. Pratt testified that he was sitting on a couch in the
living room when Mr. Meadows entered the residence. Mr. Meadows
approached defendant, whose back was towards him, and said that he
needed to purchase an “eight ball” of cocaine. Pratt testified
that defendant reached his hand into his pocket to grab his gun.
When the door closed behind Mr. Meadows, defendant spun around,
pulled out the gun, pointed it at Mr. Meadows and said, “I ought to
kill [you] right now.” Pratt testified that Mr. Meadows responded
by asking, “For what?” In an attempt to exit the residence, Pratt
stood up and ran towards the door. As Pratt slipped past Mr.
Meadows, defendant pulled the trigger on the gun and shot Mr.
Meadows.
Kevin Lee Matthews (“Matthews”), another eyewitness,
testified that at the time of the incident he lived at 629 Watson
Street and that he allowed defendant to use his house to sell
drugs. On 14 September 2003, Matthews was standing in front of theresidence when Mr. Meadows arrived. While Mrs. Sumner and Johnson
remained outside, Matthews followed Mr. Meadows inside and closed
the door. Matthews testified that he proceeded to the stairway to
go upstairs when he heard defendant talking to Mr. Meadows. Mr.
Meadows responded to defendant by asking, “[w]hat are you talking
about?” Matthews further testified that defendant answered Mr.
Meadows and said, “I'm going to show you what I'm talking about,”
pulled out a gun, and shot Mr. Meadows.
Finally, the State also presented testimony from Keana Benton
(“Benton”), defendant's girlfriend, that on 14 September 2003,
defendant admitted to her that he had shot someone. The defendant
presented no evidence at his trial for first-degree murder.
The jury returned a verdict finding defendant guilty of first-
degree murder. The trial court subsequently sentenced defendant to
life imprisonment without parole. Defendant appeals.
The sole issue on appeal is whether the trial court erred by
informing the jury of defendant's possible sentence term if he was
convicted of second-degree murder. We find no prejudicial error.
During jury deliberations, the bailiff delivered a handwritten
note from the jury to the judge which read:
Judge Balog,
What is the mandatory sentence for 2nd
degree murder?
In response to the jury's question, the judge informed the jury of
the range of sentences the defendant would possibly face if
convicted of second-degree murder. Defendant argues the trialcourt erred by informing the jury of defendant's possible
sentences.
The State contends that if there was any error in the trial
court's instruction to the jury, the defendant invited the error
or, in the alternative, that by failing to object to the jury
instruction, the defendant failed to preserve any such error for
appeal. After reviewing the applicable portion of the transcript,
we disagree with the State and we hold that defendant's counsel did
not invite error and sufficiently complied with N.C. R. App. P.
10(b)(2) (2005).
Defendant initially objected to the trial court informing the
jury of the specific sentence as the following discussion
illustrates:
MR. KIMEL (the defense attorney): Would the
Court read the question just one more time?
I'm sorry.
THE COURT: Yes, Sir [sic]. “What is the
mandatory sentence for second degree murder?”
MR. KIMEL: Your Honor, I've never heard that
question before, you know, from a jury. We
would request that the Court merely say
sentencing is in the discretion of the Court.
Subsequently the trial judge asked the State's response.
THE COURT: What says the State?
MR. FREE: I think, Your Honor, that borrowing
on that - I think I caught the last bit of
what Mr. Kimel said. I think the Court should
just instruct them - caution them that you are
responsible for sentencing in reference to if
they come back with the second degree, that
that's not their function. Their function is
only to determine the facts and render [a]
decision [of] guilty on the charge, on
whatever charge. Guilty on first, second, ornot guilty. I'm just a little concerned if
giving them the numbers and then they can in
weighing the numbers at that time.
Defendant's attorney reiterated that he agreed with the State and
objected to the use of numbers in the judge's answer to the jury.
Because defendant consistently objected to including a specific
sentence range in the answer to the jury's question, defendant's
subsequent suggestion to the judge did not invite error. Further,
because defendant requested a different instruction, defendant was
not required to object to the instruction when given in order to
preserve this question for appeal. See State v. Smith, 311 N.C.
287, 290, 316 S.E.2d 73, 75 (1984) (holding defendant's earlier
request for instruction was sufficient to preserve issue for appeal
even though defendant did not object to the jury charge when
given).
We next consider whether the trial court erred in its response
to the jury's question.
Generally “[t]he judge should not . . . instruct the jury with
regard to possible punishments for lesser included offenses of the
capital crime for which defendant is being tried, at least when
punishment for such offenses is not mandatory but subject to the
exercise of the judge's discretion.” State v. Anderson, 303 N.C.
185, 201, 278 S.E.2d 238, 247 (1981), overruled on other grounds by
State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988). “If
information is requested [the trial judge] should refuse it and
explain to [the jury] that punishment is totally irrelevant to the
issue of guilt or innocence.” State v. Rhodes, 275 N.C. 584, 592,169 S.E.2d 846, 851 (1969). Because the sentence at issue was a
discretionary sentence, the general rule that the trial court
should ordinarily not provide the jury with the possible sentence
range is applicable. See Anderson, 303 N.C. 185, 201, 278 S.E.2d
238, 247. Thus, under the general rule, the trial court should
have refused to provide the jury with any specific information
regarding the sentence and instead should have stated “punishment
is totally irrelevant to the issue of guilt or innocence.” Rhodes,
275 N.C. at 592, 169 S.E.2d at 851.
The State argues that the “even keel” exception to the general
rule should apply because (1) defendant's argument to the jury was
that the State's witnesses were too unreliable to support a life
sentence; and (2) defendant's counsel argued the seriousness of the
mandatory sentence for first-degree murder leaving a question in
the mind of the jury as to the seriousness of the second-degree
murder charge. We disagree.
Under Rhodes, the “even keel” exception applies when there is
some compelling reason such as an erroneous impression given by
defense counsel “which makes disclosure as to punishment necessary
in order to keep the trial on an even keel and to insure complete
fairness to all parties.” Id., 275 N.C. at 592, 169 S.E.2d at 851
(internal quotations omitted). This exception, however, does not
prevent a defendant's counsel from arguing possible sentences to
the jury. Pursuant to North Carolina General Statute § 7A-97
(2005), “the whole case as well of law as of fact may be argued to
the jury.” In interpreting this statute, this Court has held: Counsel may exercise this right by reading the
punishment provisions of the statute to the
jury, though he may not argue the question of
punishment in the sense of attacking the
validity, constitutionality, or propriety of
the prescribed punishment. . . . Nor may
counsel argue to the jury that the law ought
to be otherwise, that the punishment provided
thereby is too severe and, therefore, the jury
should find the defendant not guilty of the
offense charged but should find him guilty of
a lesser offense or acquit him entirely.
State v. Belfield, 144 N.C. App. 320, 327, 548 S.E.2d 549, 552-53
(2001) (internal quotations and citations omitted). This provision
“secures to a defendant the right to have the jury informed of the
punishment prescribed for the offenses for which the defendant is
being tried.” State v. Peoples, 141 N.C. App. 115, 120, 539 S.E.2d
25, 30 (2000). By counsel providing a jury with sentencing
information “[i]n serious felony cases . . . [it] serves the
salutary purpose of impressing upon the jury the gravity of its
duty.” State v. McMorris, 290 N.C. 286, 288, 225 S.E.2d 553, 554
(1976). Thus, “[i]t is proper for [a] defendant to urge upon the
jury the possible consequence of imprisonment following conviction
to encourage the jury to give the matter its close attention and to
decide it only after due and careful consideration.” Id.
In this case, the arguments made to the jury by defendant's
counsel were proper. Defendant's counsel did not attack the
validity, constitutionality, or propriety of the punishment;
neither did defendant's counsel argue that the punishment was too
severe and encourage the jury to acquit. See Belfield, 144 N.C.
App. at 327, 548 S.E.2d at 552-53. See also, State v. Smith, 335
N.C. 539, 438 S.E.2d 719 (1994) (holding that argument ofdefendant's counsel was not improper because it impressed upon the
jury the seriousness of the matter). Further, defendant's counsel
did not make “disclosure necessary to remove an erroneous
impression and to place the cause back on an even keel so that it
might be decided by the jury with complete fairness to all
parties.” Rhodes, 275 N.C. at 588, 169 S.E.2d at 849. Therefore
the “even keel” exception does not apply in the case before us. It
was error for the trial court to inform the jury of defendant's
possible sentence if he were convicted of second-degree murder.
We next consider whether the trial court's error was
prejudicial. Rhodes, 275 N.C. at 592, 169 S.E.2d at 851 (holding
when a trial court improperly tells a jury of the defendant's
sentence ranges, “the error will be evaluated like any other.”).
Defendant argues that the error in this case was prejudicial
because it probably prevented the jury from finding him guilty of
second-degree murder because the jury may have concluded that the
sentence for second-degree murder would be an inadequate
punishment. We disagree.
North Carolina General Statutes § 15A-1443 (2005) states:
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises. The
burden of showing such prejudice under this
subsection is upon the defendant . . . .
“Murder in the first degree is the unlawful killing of a human
being with malice and with premeditation and deliberation.” Statev. Jones, 342 N.C. 628, 630, 467 S.E.2d 233, 234 (1996).
“Premeditation means that the act was thought out beforehand for
some length of time, however short, but no particular amount of
time is necessary for the mental process of premeditation.” State
v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994).
“Deliberation means an intent to kill, carried out in a cool state
of blood, in furtherance of a fixed design for revenge or to
accomplish an unlawful purpose and not under the influence of a
violent passion, suddenly aroused by lawful or just cause or legal
provocation.” Id., 335 N.C. at 635, 440 S.E.2d at 836.
“Second-degree murder is the unlawful killing of a human being with
malice, but without premeditation and deliberation.” State v.
Welch, 135 N.C. App. 499, 502, 521 S.E.2d 266, 268 (1999). Second-
degree murder is a lesser included offense of first-degree murder.
State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 925 (2000).
The State's evidence tended to show that defendant approached
at least one person prior to the shooting and stated that he was
going to kill whoever had given his cell phone number to Officer
Griffiths. Also defendant stated that he suspected three people,
one of whom was Mr. Meadows, had given his cell phone number to
Officer Griffiths. Defendant approached the other two people about
the phone number and both of then denied giving the number to
Officer Griffiths. Eyewitnesses stated that on 14 September 2003,
when Mr. Meadows entered the residence, the defendant's back was
towards Mr. Meadows. One witness testified that defendant had a
look on his face like “something was about to go down.” Witnessestestified that defendant reached into his pocket to pull out a gun
and, once the door closed behind Mr. Meadows, the defendant spun
around and pointed the gun at Mr. Meadows. Defendant argued
briefly with Mr. Meadows while pointing the gun at him, then shot
him. The State's evidence established defendant's premeditation
and deliberation. Given the overwhelming amount of evidence
establishing each element of first-degree murder, there is no
indication that the jury would have reached a different verdict had
the error not been committed. We hold defendant was not
prejudiced by the trial court informing the jury of the sentence
ranges for second-degree murder. See Rhodes, 275 N.C. at 592, 169
S.E.2d at 851 (1969) (holding no prejudicial error resulted when
the trial court informed the jury of the punishment for a
conviction of assault with intent to commit rape when the evidence
presented established beyond a reasonable doubt a rape occurred).
Defendant failed to argue his remaining assignments of error.
Therefore, they are deemed abandoned pursuant to N.C. R. App. P.
28(b)(6) (2006).
No prejudicial error.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***