1. Confessions and Other Incriminating Statements--not custodial
The trial court did not err by admitting statements by a capital first-degree murder defendant where
defendant voluntarily drove himself to the Sheriff's Department in a private automobile after a detective
requested an interview; defendant was not confined, handcuffed, restrained, threatened, or subjected to any
show of force; he consented to a polygraph examination, returning to a waiting room while the test was
prepared and voluntarily going to the examination room; when the examiner told defendant that she did not
think he was telling the entire truth, he replied that he had been present when the fire was set and blamed it on
one of the victims; and when the examiner returned after speaking with the detectives, defendant stated before
she could speak that his fiancee had set the fire. Under the totality of the circumstances, defendant was not in
custody during his interview.
2. Confessions and Other Incriminating Statements--statements after request for counsel
The trial court did not err in a prosecution for capital first-degree murder and other crimes by admitting
statements made by defendant after he indicated that he wished to talk with counsel where defendant was then
subjected to interrogation only after continuing to ask questions about the case, telling detectives that he wished
to talk without the presence of counsel, and formally waiving his Miranda rights.
3. Search and Seizure--consent to search--voluntary waiver of rights
The trial court did not err in a capital prosecution for first-degree murder by admitting evidence seized
during a search of defendant's automobile. Although defendant argued that his consent to the search was given
without a knowing and voluntary waiver of his Miranda rights, the trial court had already properly determined
that none of defendant's constitutional rights were violated during his arrest and interrogation and that
defendant had voluntarily waived his Miranda rights. From the totality of evidence regarding defendant's
arrest, waiver of rights, interrogation and statements made, defendant knowingly and voluntarily consented to
the search of his vehicle.
4. Discovery--polygraph--results not discoverable
The trial court did not err in a capital first-degree murder prosecution by denying defendant's motion to
discover polygrams (produced by a polygraph test) under N.C.G.S. § 15A-903(e) where defendant asserted
that he wanted to submit the polygrams to his own expert to determine whether the examiner had
misrepresented the results to defendant. Polygraphs do not fall within the category of examinations
contemplated by the statute; furthermore, the issue of whether the examiner correctly interpreted or commented
upon the test results is merely one factor bearing upon the total circumstances.
5. Confessions and Other Incriminating Statements--redacted confession of codefendant--other
overwhelming evidence
There was no prejudicial error in a capital prosecution for first-degree murder, conspiracy, and arson in
the admission of the redacted and retyped confession of an accomplice where the confession was carefully
redacted by taking out complete sentences and groups of sentences that mentioned, connected, or referenced the
existence of defendant; the confession as redacted retained a natural narrative flow and did not contain any
contextual clues indicating that it had been altered; and, the alterations were subtle, neither attracted the jury's
attention nor invited speculation, and did not directly implicate defendant by language which invited the jury to
infer that the unnamed third party referred to in the confession was defendant. Furthermore, any Bruton error
which may have occurred was harmless beyond a reasonable doubt due to the overwhelming evidence of
defendant's guilt, including defendant's own confession.
6. Criminal Law--joinder--confession of codefendant
The trial court did not err by joining the capital trials of two defendants for first-degree murder, arson,and conspiracy where defendant Brewington argued that joinder was improper and severance necessary due to
prejudice from the introduction of his codefendant's confession, but, as stated elsewhere in the opinion, the
admission of the confession did not prejudice defendant.
7. Homicide--first-degree murder--short-form indictment
A short-form murder indictment was constitutionally sufficient.
8. Sentencing--capital--mitigating circumstances--age of defendant
The trial court did not err during a capital sentencing proceeding by not submitting the statutory
mitigating circumstance of defendant's age at the time of the offense, N.C.G.S. § 15A-2000(f)(7), where
defendant argues that he presented substantial evidence that his psychological maturity was that of a child even
though his chronological age at the time of the murders was 33, there was evidence that defendant appeared to
be fairly well adjusted in society, and he had sufficient intelligence to attend community college and establish a
good work history. The North Carolina Supreme Court will not conclude that a trial court erred by failing to
submit this mitigator where evidence of emotional immaturity is counterbalanced by other factors.
9. Sentencing--capital--nonstatutory mitigating circumstances--relatively minor participation--
subsumed by statutory circumstances
The trial court did not err in a capital sentencing proceeding by not submitting defendant's requested
nonstatutory mitigating circumstances concerning the fact that he was not present when the killing was done
where the court submitted the statutory mitigating circumstance that defendant was an accomplice or accessory
and his participation was relatively minor. The court's instruction regarding that mitigator specifically referred
to defendant's indirect participation three times and it fully encompassed and more accurately stated the
concepts defendant wanted the jury to consider; moreover, any juror who found it to exist was required to give
it mitigating value because it was a statutory circumstance. Finally, although defendant argues that the
statutory circumstance was insufficient because jurors could have found defendant's absence from the scene to
have mitigating value even if his participation was not minor, the court's instruction on the statutory catchall
mitigating circumstance gave the jury the authority and opportunity to consider any and all facts in evidence
which any member of the jury found to have mitigating value. N.C.G.S. § 15A-2000(f)(4); N.C.G.S. § 15A-
2000(f)(9).
10. Sentencing--capital--mitigating circumstances--instructions--substantially similar to Pattern Jury
Instructions
A defendant in a capital sentencing proceeding could not show that the trial court's instruction
prejudiced him where defendant requested the pattern jury instruction on the mitigating circumstance of no
significant history of prior criminal activity, the court gave an instruction which was not precisely identical to
the pattern jury instruction but was substantially so, and the jury found the circumstance. N.C.G.S. § 15A-
2000(f)(1).
11. Sentencing--capital--aggravating circumstances--especially heinous, atrocious, or cruel--
accomplice not at scene
The trial court did not err during a capital sentencing proceeding by submitting the especially heinous,
atrocious, or cruel aggravating circumstance where defendant was not present when the murders were
committed. Even though he was not present, he was personally involved in planning the details of the murders,
took deliberate steps to enable the murders to proceed according to his instructions, and does not dispute that
the manner in which the victims were murdered is sufficient to support the circumstance. N.C.G.S. § 15A-
2000(e)(9).
12. Sentencing--capital--proportionality
A death sentence for a first-degree murder was not imposed under the influence of passion, prejudice, or
any other factor, the evidence supported the aggravating circumstances found by the jury, and the sentence was
not disproportionate. Defendant was convicted of two counts of murder, the jury found three aggravating
circumstances, and the jury found the especially heinous, atrocious, or cruel aggravating circumstance.
Appeal as of right by defendant pursuant to N.C.G.S. § 7A-27(a) from
judgments imposing sentences of death entered by Bowen, J., on 28 August
1998 in Superior Court, Harnett County, upon jury verdicts finding
defendant guilty of two counts of first-degree murder. On 26 October 1999,
the Supreme Court allowed defendant's motion to bypass the Court of Appeals
as to his appeal of additional judgments. Heard in the Supreme Court
15 May 2000.
Michael F. Easley, Attorney General, by John G. Barnwell and Joan M.
Cunningham, Assistant Attorneys General, for the State.
Ann B. Petersen for defendant-appellant.
LAKE, Justice.
On 30 June 1997, defendant was indicted for two counts of first-degree
murder, two counts of conspiracy to commit first-degree murder, one count
of conspiracy to commit first-degree burglary, one count of conspiracy to
commit first-degree arson, and one count of first-degree arson. Defendant
was tried capitally at the 4 August 1998 Special Criminal Session of
Superior Court, Harnett County. During the course of the trial, the
charges of conspiracy to commit first-degree burglary and conspiracy to
commit first-degree arson were dismissed. The jury subsequently found
defendant guilty of first-degree arson, both counts of conspiracy to commit
first-degree murder, and both counts of first-degree murder on the basis of
premeditation and deliberation and under the felony murder rule. Following
a capital sentencing proceeding, the jury recommended sentences of death as
to each murder conviction. On 28 August 1998, the trial court sentenced
defendant to two separate sentences of death, one for each of the two
convictions for first-degree murder. The trial court also sentenced
defendant to a sentence of 157 to 198 months' imprisonment for the two
conspiracy to commit murder convictions and to a sentence of 64 to 86
months' imprisonment for the arson conviction.
At trial, the State's evidence tended to show that defendant and VeraSue Lee were engaged to be married. Defendant lived in Dunn, NorthCarolina, with his grandmother, Frances Brewington, who had adopted him as
a child, and also with his eight-year-old nephew, Brian Brewington. On 21
April 1997, defendant took out two life insurance policies from Home
Beneficial Life Insurance Company. One policy was on defendant's brother,
Patrick Brewington, for $75,000. The other policy was on Patrick's son,
Brian, for $58,552. Defendant forged Patrick's signature on both policies
and named himself as the beneficiary on both. On 29 May 1997, Lee and
defendant made a deposit on a lot and mobile home, but the mortgage company
refused to approve their loan.
After defendant took out the life insurance policies on Brian and
Patrick, Lee met with her friend, Chris Wilson, and discussed the idea of
killing Patrick Brewington to get money for a house. Lee offered to share
$10,000 from the insurance proceeds with Wilson if they killed Patrick. A
week later, Lee, Wilson, and defendant met to discuss killing Patrick, but
Wilson refused to help. Lee, however, continued to talk about killing
either Patrick or Brian Brewington during the weeks that followed. During
this time, Lee also recruited Henry Michael McKeithan to help with the
killing, promising him $200 or $300 Wednesday and about a $1,000 in three
to four months.
On 1 June 1997, Lee and defendant discussed defendant's plan for her
to kill Frances and Brian Brewington. Defendant told Lee to make the crime
look like a robbery, remove a few items such as the TV, stab Frances and
Brian, and set the house on fire. On 11 June 1997, defendant and Lee went
to an open-air market and bought a knife to use for the killings. During a
telephone conversation that evening, defendant told Lee that he was ready
for the plan to be carried out.
Around 4:49 a.m. on 12 June 1997, Lee and McKeithan, who had just
driven by the Brewington residence and honked the horn to wake defendant,
purchased two one-gallon jugs of distilled water at Winn-Dixie. They
emptied the water from the jugs and refilled them with gasoline from the T-Mart on Cumberland Street. During this time, defendant dressed for work;
collected the insurance policies and his best clothes for Frances' and
Brian's funerals; and left the Brewington home, leaving the back door
unlocked. Defendant drove to Hardee World where he met Lee, and defendant
put his clothes in the trunk of Lee's car. Defendant then drove to work
while Lee and McKeithan drove to the Brewington residence.
When Lee and McKeithan arrived at the Brewington house, they parked
the car in the driveway, put on rubber gloves, and entered the house
through the back door, carrying the jugs of gasoline. Lee gave McKeithan
the knife from the open-air market and told him to kill Brian while she
killed Frances. Unable to stab Brian, McKeithan instead poured gasoline
around the bedroom where the victims were sleeping. As McKeithan and Lee
stood over them with knives, Frances and Brian Brewington woke up and
started screaming. McKeithan stabbed Frances Brewington repeatedly and
then ran to the car to get his lighter. While McKeithan was outside, Lee,
who had stabbed Brian, lit a dishrag at the heater and ignited the gasoline
in the bedroom. Although severely wounded, the Brewingtons continued to
scream while Lee and McKeithan ran to the car and drove away. Lee and
McKeithan buried the knife and burned their clothing and gloves at
McKeithan's house.
At approximately 6:15 a.m. that morning, Harnett County Sheriff's
Deputy Jerry Edwards saw smoke rising from the Brewington house. He called
the fire department, then went to the house and tried to look into the
windows, but the smoke was too thick for him to see inside. After the
firefighters extinguished the fire, they notified Deputy Edwards that they
had found two bodies in the bedroom. Deputy Edwards secured the scene
after viewing the bodies and a jug of gasoline and lighter in the livingroom. Defendant had been summoned from work before the fire was
extinguished. When he arrived at the house, defendant spoke with Deputy
Edwards. Defendant told Deputy Edwards that he had left for work around
5:30 a.m., and that when he left, the only appliance running was the air
conditioner. Defendant was also interviewed twice that day by Deputy Fire
Marshal Jimmy Riddle. During the first interview around 8:05 a.m.,
defendant told Riddle that the microwave would sometimes kick out the
circuit breakers and that there were several extension cords in the
bedroom. Riddle terminated the interview because defendant seemed very
upset. Around 12:20 that afternoon, Riddle again interviewed defendant,
who stated that he had left the house by 5:30 a.m. and that he had run
several errands before arriving at work. Defendant also stated that his
grandmother had been having problems with the air conditioner lately and
that he had not seen the jug of gasoline that had been found in the living
room.
The preliminary investigation of the crime scene showed that the
fire had been deliberately set with an accelerant which was poured on the
floor of the bedroom. This conclusion was based on factors such as the
pour pattern of the gasoline, the color of the smoke and flames, and the
elimination of the electrical system and all appliances as possible sourcesof the fire. The investigation also revealed the knife wounds to Frances
Brewington's body. A knife handle and partial knife blade were also found
under her body.
Following the investigation, defendant, McKeithan and Lee were
arrested and charged. Pursuant to N.C.G.S. § 15A-926, the State elected to
try defendant and McKeithan in a joint trial, and Lee was tried separately.
In his first assignment of error, defendant contends that the
trial court erred by denying his motion to suppress statements made to
State Bureau of Investigation (SBI) Special Agent Gail Beasley at the
Harnett County Sheriff's Department on 12 and 13 June 1997. An evidentiary
hearing on defendant's motion to suppress began on 24 July 1998, but was
not completed that day. The trial court resumed the evidentiary hearing on
this issue on 12 August 1998, after the completion of jury selection. On
13 August 1998, in open court, the trial court denied defendant's motion to
suppress. On appeal, defendant argues the statements should have been
excluded from evidence because they were made at a time when defendant was
subjected to custodial interrogation and was not advised of his Miranda
rights.
Following the evidentiary hearing, the trial court made extensive
and detailed findings of fact with regard to defendant's interviews with
members of the Harnett County Fire and Sheriff's Departments, which we
summarize: At approximately 8:00 a.m. on 12 June 1997, the morning of the
fire and before the cause of the fire was known, Deputy Fire Marshal Jimmy
Riddle interviewed defendant. Defendant stated that when he left home
around 5:30 a.m., the bedroom window air conditioner had been on and that
there had been problems with the microwave kick[ing] out the house's
circuit breakers. At approximately 12:20 p.m. that afternoon, Riddle again
interviewed defendant, this time at the Dunn Fire Department and in the
presence of Sheriff's Detective Greg Taylor. Defendant stated that he hadleft the house for work after waking at 5:00 a.m. that morning, and
repeated that the air conditioner had been on when he left and that the
microwave oven would often trip the circuit breakers. Defendant also
stated that there had been no gasoline in the house when he left.
The trial court's extensive findings of fact further included the
following: At approximately 5:30 p.m. that same day, defendant drove
himself to the Harnett County Sheriff's Department at Detective Billy
Wade's request. Detective Wade asked defendant to take a polygraph test,
and defendant agreed. Agent Beasley conducted the polygraph test.
Defendant denied any involvement in the deaths, but Agent Beasley told him
that she did not think he was telling the entire truth. Defendant then
told her that Brian had started the fire, and that defendant had left the
house after Brian told him to leave. Agent Beasley left the examination
room to tell Detective Wade and SBI Special Agent John Hawthorne what
defendant had said. As Agent Beasley returned to the room, defendant
spontaneously told her that his fiancée, Vera Lee, had started the fire.
Agent Beasley reported this statement to Detective Wade and Agent
Hawthorne, who subsequently entered the room and advised defendant of his
Miranda rights. This occurred at approximately 8:20 p.m. that evening.
After defendant received his Miranda warnings, defendant stated that he
thought he needed to speak with a lawyer. The officers stopped questioning
defendant. However, defendant then asked, What if I know who did it?
Detective Wade told defendant that the officers could not talk to him
unless he initiated the conversation. Defendant then stated that he did
want to talk to them. Detective Wade again advised defendant of his
Miranda rights. Defendant signed a written waiver of his Miranda rights at
8:33 p.m. that evening.
Additionally, the trial court found that defendant told Detective
Wade and Agent Hawthorne that defendant planned the murders with Lee andMcKeithan, that the murders were defendant's idea, and that they planned to
kill Brian for the proceeds of a $58,000 life insurance policy that
defendant had taken out on Brian. Defendant detailed his role in the
murders, giving an account of his movements on the morning of 12 June 1997.
The trial court found that defendant was rational, coherent, and logical
when he waived his Miranda rights, and defendant did not appear to be under
the influence of alcohol or any drugs other than a prescription medication
for his nerves, which he had taken earlier in the day. Defendant did not
at any time request a lawyer or request that the interview stop. After the
interview, defendant freely and voluntarily consented to the search of his
automobile, in which several items of evidence were seized, including the
life insurance policies that defendant had taken out on Brian Brewington
and on Brian's father, Patrick.
Based on these findings of fact, the trial court concluded that
defendant's statements to Deputy Fire Marshal Riddle and Agent Beasley were
noncustodial and were made freely and voluntarily; that defendant himself
reinitiated conversation with law enforcement officers following his being
advised of his Miranda rights; and that defendant's subsequent statement to
Detective Wade and Agent Hawthorne was made freely, voluntarily, and with
full comprehension of his Miranda rights. The trial court also concluded
that none of defendant's constitutional rights were violated during his
interrogation and arrest; that defendant was not induced to make a
statement or consent to the search of his vehicle by any promises,
inducements, or offers of reward, or by any threat or show of force; and
that defendant freely, knowingly, and voluntarily consented to the search
of his car. The trial court therefore denied defendant's motion to
suppress.
At the outset, we note that the standard of review in evaluating
a trial court's ruling on a motion to suppress is as follows: The trial court makes the initial determination as to
whether an accused has waived his right to counsel.
Its findings of fact are conclusive on appeal if
supported by competent evidence, even if the evidence
is conflicting. State v. Eason, 336 N.C. 730, 745,
445 S.E.2d 917, 926 (1994), cert. denied, 513 U.S.
1096, 130 L. Ed. 2d 661 (1995). Conclusions of law
that are correct in light of the findings are also
binding on appeal. State v. Howell, 343 N.C. 229,
239, 470 S.E.2d 38, 43 (1996).
State v. Peterson, 347 N.C. 253, 255, 491 S.E.2d 223, 224 (1997).
Furthermore, this Court has recently reaffirmed that
a trial court's resolution of a conflict in the
evidence will not be disturbed on appeal, State v.
Braxton, 344 N.C. 702, 709, 477 S.E.2d 172, 176 (1996),
and its findings of fact are conclusive if they are
supported by the evidence, State v. Robinson, 346 N.C.
586, 596, 488 S.E.2d 174, 181 (1997). Once this Court
concludes that the trial court's findings of fact are
supported by the evidence, then this Court's next task
is to determine whether the trial court's
conclusion[s] of law [are] supported by the findings.
State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288
(2000).
State v. Steen, 352 N.C. 227, ___, ___ S.E.2d ___, ___,
(2000) (No. 530A98).
[1]In this assignment of error, defendant first addresses the
admission of the two statements made by defendant to Agent Beasley at the
Harnett County Sheriff's Department after 6:00 p.m. on 12 June 1997.
Defendant argues that these statements should have been excluded from
evidence because they were made at a time when defendant was subjected to
custodial interrogation and had not been advised of his Miranda rights. We
disagree.
In determining whether a statement is voluntary, this Court
reviews the totality of the surrounding circumstances in which the
statement was made. Hyde, 352 N.C. at 45, 530 S.E.2d at 288. This Court
reaffirmed that pertinent factors include
whether defendant was in custody, whether he was
deceived, whether his Miranda rights were honored,
whether he was held incommunicado, the length of theinterrogation, whether there were physical threats or
shows of violence, whether promises were made to obtain
the confession, the familiarity of the declarant with
the criminal justice system, and the mental condition
of the declarant.
State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994).
Additionally, with regard to the question of whether a person is in
custody, this Court has stated:
The United States Supreme Court has held that in
determining whether a suspect was in custody, an
appellate court must examine all the circumstances
surrounding the interrogation; but the definitive
inquiry is whether there was a formal arrest or a
restraint on freedom of movement of the degree
associated with a formal arrest. Stansbury v.
California, 511 U.S. 318, 128 L. Ed. 2d 293 (1994) (per
curiam).
State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 404-05, cert. denied,
522 U.S. 900, 139 L. Ed. 2d 177 (1997).
Our review of the record, in its entirety, reflects that after
Detective Wade requested an interview with defendant, defendant voluntarily
drove himself to the Sheriff's Department in a private automobile.
Defendant was not accompanied by a police officer. Once defendant arrived
at the Sheriff's Department, he was not confined, handcuffed, restrained in
any manner, threatened or subjected to any show of force. Defendant
consented when Detective Wade asked him if he would agree to take a
polygraph examination. After defendant met Agent Beasley, she told
defendant that this test was voluntary and he could leave at any time.
Defendant replied that he had no problem with taking a polygraph.
Defendant agreed to sign, and did sign, a polygraph examination consent
form, which reaffirmed that defendant was not in custody and was taking the
polygraph examination voluntarily. After Agent Beasley explained the
polygraphic process to defendant, defendant returned to the waiting room
for about ten to fifteen minutes while Agent Beasley prepared for the test.
Once Agent Beasley prepared the polygraph, defendant voluntarily returnedto the examination room with her. Defendant was not handcuffed or
restrained during his interview with Agent Beasley. He was not threatened,
and Agent Beasley did not make any promises to defendant. Defendant was
not crying and did not appear to be agitated.
At the conclusion of the polygraph test, when Agent Beasley told
defendant that she did not believe he was telling the entire truth,
defendant stated that he had been present when the fire started, but blamed
the arson on his nephew, Brian. No one else was in the room with defendant
and Agent Beasley at this time. Agent Beasley left the room and reported
defendant's statement to Detective Wade and Agent Hawthorne, and defendant
remained in the examining room alone. Defendant was not handcuffed or
under any restraint at this time. Agent Beasley returned to the examining
room alone. Upon her return, before she could get a chance to speak,
defendant stated, I know who set the fire and she is sitting out
there. . . . She's here. My fiancée, Vera Lee. Defendant never
requested a lawyer during the time he spent with Agent Beasley, and she had
no further communication with him.
Based on the foregoing, we conclude that the record contains
ample evidence which supports the trial court's findings of fact. We also
conclude that the trial court correctly determined that, under the
totality of the circumstances, defendant was not in custody during his
entire interview with Agent Beasley. Therefore, the trial court properly
admitted defendant's statements to Agent Beasley into evidence at trial.
[2]By this same assignment of error, defendant next challenges
the admissibility of the statement he made to Detective Wade and Agent
Hawthorne. Defendant concedes that he was then in custody and that he had
properly been informed of his Miranda rights at this time. However,
defendant contends that the trial court erred in admitting his statement
into evidence because after defendant invoked his right to counsel,Detective Wade and Agent Hawthorne did not scrupulously honor defendant's
right to end the questioning.
Our review of the record reveals that when Detective Wade and
Agent Hawthorne entered the examination room at approximately 8:20 p.m. and
read the Miranda warnings to defendant, defendant responded that he
understood each item. Wade subsequently read the Miranda waiver to
defendant, who did not sign the waiver form. Defendant stated, I believe
I need to talk to a lawyer. Wade responded, I believe you do too.
Defendant concedes that this response indicates that Detective Wade and
Agent Hawthorne understood defendant's invocation of his rights to counsel.
After defendant invoked his right to counsel, Agent Hawthorne
asked defendant questions that were not case-specific. Agent Hawthorne
testified during voir dire that the purpose of these questions was to
document our activity and who we were talking to and to complete
defendant's Personal History Arrest Form. Specifically, the information
Agent Hawthorne sought to obtain was defendant's date of birth, social
security number, address, height and weight. The record reveals that while
Agent Hawthorne was in the process of obtaining this information, defendant
began questioning Detective Wade and Agent Hawthorne about the crimes, and
asked, What if I know who did it? During voir dire, Detective Wade
testified that at this point he responded to defendant as follows:
I informed him that I could not talk to him since
he had not waived his rights. There was nothing that I
could say to him and he should say nothing to me. And
that if he wanted to talk to me, he had to initiate it.
I had to re-advise him of his required Miranda rights
and he would need to sign the waiver stating that he
did not wish to have an attorney.
This testimony indicates that Detective Wade understood that defendant was
trying to initiate communication about the case, and Detective Wade
correctly reminded defendant that he had invoked his right to counsel.
Detective Wade also reminded defendant that he could not discuss the casewith defendant unless and until defendant formally waived his Miranda
privileges in writing.
Agent Hawthorne also testified that as defendant continued to ask
case-specific questions,
we explained to him that he had invoked his right to
counsel and we couldn't discuss the case with him, and
also explained to him that, you know, it couldn't be a
one-way conversation; that he'd invoked the right to
counsel and I couldn't discuss the facts of the case
with him.
Defendant then indicated to both Detective Wade and Agent Hawthorne that he
had changed his mind and wanted to participate in the interview, after
which both Detective Wade and Agent Hawthorne took steps to make sure
[defendant], in fact, was changing his mind. Agent Hawthorne testified
that it was necessary
[a]lso to make sure that [defendant] understood that he
had revoked his right to counsel, that any decision on
his part had to be his decision. And he had--in other
words, I had to be convinced that he was changing his
mind on his own and wanted to, in fact, make a
statement.
Once defendant convinced Agent Hawthorne and Detective Wade that he wanted
to speak to them, Agent Hawthorne and Detective Wade informed defendant of
his Miranda rights a second time. Not until defendant formally waived his
Miranda rights and signed the waiver form did Agent Hawthorne and Detective
Wade question defendant about the arson and murders.
During the period between the first and second Miranda warnings,
Detective Wade and Agent Hawthorne were the only people present in the room
with defendant. Defendant was not handcuffed, and while Agent Hawthorne
obtained historical and personal data from defendant, defendant appeared to
speak in a rational and understanding manner. Defendant did not appear to
be impaired, fatigued, or under the influence of a controlled substance.
In Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378 (1981), the
United States Supreme Court held that: an accused, . . . having expressed his desire to deal
with the police only through counsel, is not subject to
further interrogation by the authorities until counsel
has been made available to him, unless the accused
himself initiates further communication, exchanges, or
conversations with the police.
Id. at 484-85, 68 L. Ed. 2d at 386. Defendant asserts that this rule is
premised upon the assumption that the first interrogation was immediately
terminated for a substantial period of time. Michigan v. Mosley, 423 U.S.
96, 46 L. Ed. 2d 313 (1975). Defendant contends that in the case sub
judice, the initial reading of the Miranda warnings constituted the first
interrogation, and that Agent Hawthorne's questions, which were asked in
order to complete defendant's Personal History Arrest Form, constituted a
reinitiation of that custodial interrogation in violation of his Fifth
Amendment rights. We disagree.
The Supreme Court has defined the term interrogation as
follows:
[A]ny words or actions on the part of the police (other
than those normally attendant to arrest and custody)
that the police should know are reasonably likely to
elicit an incriminating response from the suspect.
Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980).
Additionally, this Court has held that interrogation does not encompass
routine informational questions posited to a defendant during the booking
process. State v. Ladd, 308 N.C. 272, 286, 302 S.E.2d 164, 173 (1983).
We therefore conclude, based on the aforementioned evidence contained in
the record, that defendant was subjected to custodial interrogation only
after he continued to ask Detective Wade and Agent Hawthorne questions
about the case, told them that he wanted to talk without the presence of
counsel, and formally waived his Miranda rights. We further conclude that
this evidence supports the trial court's findings of fact in this regard,
and that these findings of fact support the trial court's conclusions oflaw. The trial court did not err in denying defendant's motion to suppress
his statements and any evidence obtained as a result of those statements.
[3]Finally, under this assignment of error, defendant addresses
the search of his automobile on 12 June 1997. After defendant waived his
Miranda rights and at the conclusion of defendant's interrogation and
statements regarding the murders and arson, defendant agreed to allow law
enforcement officers to search his vehicle for evidence pertaining to these
crimes. After defendant gave his consent, Detective Taylor and Agent
Beasley searched defendant's vehicle and seized a number of items of
evidence, including the life insurance policies insuring the lives of Brian
and Patrick Brewington that named defendant as beneficiary. On appeal,
defendant argues that this evidence should have been excluded because
defendant's statement giving consent to the search was made without a
voluntary and knowing waiver of his Miranda rights. This contention is
without merit. We have already concluded that the trial court properly
determined that none of defendant's constitutional rights were violated
during his arrest and interrogation and that he voluntarily waived his
Miranda rights. From the totality of the evidence of record regarding
defendant's arrest, waiver of Miranda rights, interrogation and statements
made, we conclude defendant knowingly and voluntarily consented to the
search of his vehicle. This assignment of error is overruled.
[4]In his next assignment of error, defendant contends that the
trial court erred in denying his motion for discovery and production of the
documents relating to the polygraph examination taken on 12 June 1997.
Defendant filed a motion for supplemental discovery on 5 November 1997. In
that motion, defendant made a specific request that the State provide the
printout of defendant's 12 June 1997 polygraph test as well as any consent
form or other documents that may have been created in connection with the
polygraph testing. A hearing on defendant's motion was held on 15 December1997. On that day, the trial court allowed defendant's motion, but noted,
[W]e may have to go back and look at that one again later.
On 20 February 1998, defendant filed a further motion to compel
discovery of the polygram. At the hearing on that motion, the trial court
allowed the prosecutor's request to defer a hearing and ruling on that
motion until the State could be represented by John Watters, counsel for
the SBI. On 19 March 1998, after hearing argument from Mr. Watters and
counsel for the defense, the trial court denied defendant's motion to
compel and allowed the State's motion to modify the trial court's order on
discovery so as to exclude the polygram from discoverable material. The
trial court allowed defendant's motion to seal the polygram, which the SBI
transmitted to the Harnett County Clerk of Court.
Defendant contends that the polygram falls within the purview of
N.C.G.S. § 15A-903(e), which provides for the discovery of results or
reports of physical or mental examinations or of tests, measurements or
experiments made in connection with the case. N.C.G.S. § 15A-903(e)
(1999). Defendant therefore argues that this case should be remanded to
the trial court with instructions to provide defendant with the polygram.
For the reasons stated below, we conclude that polygrams do not fall within
the scope of N.C.G.S. § 15A-903.
In State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983), this
Court reviewed the law in North Carolina and in other jurisdictions as to
the admissibility of polygraph results. This Court ultimately determined
that in North Carolina, polygraph evidence is no longer admissible in any
trial. This is so even though the parties stipulate to its admissibility.
Id. at 645, 300 S.E.2d at 361. Defendant contends that Grier does not
apply because he did not intend to introduce into evidence the polygrams
themselves. Rather, defendant asserts that he intended to submit the
polygrams to his own expert to determine whether Beasley misrepresented todefendant what the polygraph test revealed. However, as this Court clearly
stated in Grier, the meaning of a polygram depends entirely upon
interpretation. Id. at 636, 300 S.E.2d at 355-56. Chief Justice Branch,
speaking for the Court, explained:
Even if the accuracy of the machine as a measuring
device and the operative theory of the polygraph is
accepted, this is not the end of the inquiry regarding
the validity of the polygraphic process. All courts
and commentators concede that the most important factor
to be considered when evaluating the reliability and
utility of the polygraph is the role of the examiner. .
. .
. . . The recordings of the machine do not, in and
of themselves, indicate whether the examinee has been
truthful or deceptive. Rather, the ultimate conclusion
is totally dependent upon the examiner's interpretation
and analysis of the physiological changes measured by
the polygraph. The entire process, then, is a
combination of scientific measurement and human
evaluation. Because human judgment in the role of the
examiner is intrinsic to the method, human error is,
perhaps, equally intrinsic. . . .
. . . .
Recognizing that a litigant could legitimately
challenge the proffered results of a test on the basis
of the motivation of the subject, the subject's
physical and mental condition, the competence and
attitude of the examiner, the wording of the relevant
questions, and the interpretation of the test results,
we are acutely aware of the possibility that the
criminal proceeding may degenerate into a trial of the
polygraph machine. The introduction and rebuttal of
polygraph evidence, if all the possibilities for error
in the polygraphic process were deeply explored, could
divert the jury's attention from the question of the
defendant's guilt or innocence to a judgment of the
validity and limitations of the polygraph.
Id. at 636, 643, 300 S.E.2d at 355-56, 359-60 (citations omitted).
In State v. Payne, 327 N.C. 194, 394 S.E.2d 158 (1990), cert.
denied, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991), this Court reiterated its
position regarding the admissibility of polygrams that it adopted in Grier.
The defendant in Payne sought the physiological measurements contained in a
polygram as part of his challenge to the admissibility of the statementshe made to law enforcement officers after the polygraph examination, as
well as to challenge the credibility of those officers' testimony. Id. at
201, 394 S.E.2d at 161-62. However, the defendant in Payne waited until
four days prior to trial to specially request the polygram. Id. at 201,
394 S.E.2d at 162. This Court overruled defendant Payne's assignment of
error. Id.
Defendant in the case sub judice construes this Court's decision
in Payne to mean that polygram readouts are discoverable so long as
defendant makes a timely motion to do so. We do not agree. Defendant's
argument that polygrams are discoverable under N.C.G.S. § 15A-903(e)
ignores this Court's analysis in Grier relating the nature of the
polygraph. As stated in the above-quoted passage, a polygraph's results
are not merely scientific evaluations, but also the product of human
judgment. This Court's refusal to admit the results of a polygraph into
evidence is grounded in the fear that, given the subjective nature of the
results of a polygraph, a criminal proceeding may degenerate into . . . a
judgment of the validity and limitations of the polygraph. Grier, 307
N.C. at 643, 300 S.E.2d at 359-60. This concern is not only a threat
during the actual trial, but it is present at all aspects of a criminal
proceeding. Accordingly, we conclude that a polygraph does not fall within
the category of physical or mental examinations contemplated under
N.C.G.S. § 15A-903(e).
Further, the determination of whether a defendant's inculpatory
statement was voluntary depends upon the totality of the circumstances.
Hyde, 352 N.C. at ___, 530 S.E.2d at 288. The issue of whether the person
administering the polygraph correctly interpreted or commented upon the
test results is merely one factor bearing upon the total circumstances
surrounding defendant's statement made following the agent's comment that
she did not think he was telling the entire truth. The significance ofthis factor is greatly diminished by the unreliable nature of the polygraph
due to the subjective nature of an interpretation of its results.
Furthermore, and more fundamentally, the question of whether the polygraph
results themselves were in fact accurate or not has no real bearing on
whether defendant's statement was voluntary. For these reasons, we
conclude that the trial court did not err in allowing the State's motion to
exclude the polygram or polygraph results from discoverable material. This
assignment of error is overruled.
[5]Defendant next assigns error to the trial court's admission
of codefendant McKeithan's confession into evidence. Both defendant and
McKeithan had made statements to law enforcement officers detailing their
involvement in the murders. Each defendant's confession implicated
himself, his codefendant in this joint trial as well as Vera Sue Lee, who
was tried and convicted in a separate trial. The State redacted the
confessions to the extent that each defendant's confession contained no
references to the other defendant. Defendant argues that the admission of
McKeithan's redacted confession into evidence without a limiting
instruction violated defendant's right to confront and cross-examine a
witness against him. We do not agree.
The Confrontation Clause of the Sixth Amendment, extended
against the States by the Fourteenth Amendment, guarantees the right of a
criminal defendant 'to be confronted with the witnesses against him.'
Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 185 (1987). The
central concern of the Confrontation Clause is to ensure the reliability of
the evidence against a criminal defendant by subjecting it to rigorous
testing in the context of an adversary proceeding before the trier of
fact. Maryland v. Craig, 497 U.S. 836, 845, 111 L. Ed. 2d 666, 678
(1990). In Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968),
the Supreme Court held that a defendant's rights under the ConfrontationClause are violated when his nontestifying codefendant's confession is
introduced at their joint trial, and the confession names the defendant as
a participant in the crime. The Court's rationale was that a trial court's
limiting instruction for the jury not to consider the confession as
evidence against defendant was an ineffective protection of defendant's
right of cross-examination. Id. at 135-36, 20 L. Ed. 2d at 484-85.
The Supreme Court later limited the Bruton rule by holding that
there is no Confrontation Clause violation by the admission of a
nontestifying codefendant's confession along with a limiting instruction
where the confession has been redacted to eliminate defendant's name as
well as all references to defendant's existence. Richardson, 481 U.S. at
211, 95 L. Ed. 2d at 188. In determining not to extend the Bruton rule to
fully redacted confessions, the Supreme Court in Richardson distinguished
the confession in Bruton as a powerfully incriminating confession that
'expressly implicat[ed]' the defendant as [the] accomplice. Id. at 208,
95 L. Ed. 2d at 186 (quoting Bruton, 391 U.S. at 124 n.1, 20 L. Ed. 2d at
476 n.1). In contrast, the Court in Richardson described the redacted
confession as one that was not incriminating on its face, and became so
only when linked with evidence introduced later at trial (the defendant's
own testimony). Id. Accordingly, the confession in Richardson was
evidence requiring linkage in order for it to become incriminating. Id.
The Supreme Court clarified the significance of a fully redacted
confession in determining a Bruton issue in Gray v. Maryland, 523 U.S. 185,
140 L. Ed. 2d 294 (1998). In Gray, the Supreme Court ruled that a
confession redacted so as to merely replace defendant's name with a blank
and the word delete falls within the class of statements to which
Bruton's protections apply. Id. at 197, 140 L. Ed. 2d at 304. Even
though the trial court had given the jury a limiting instruction in Gray,
the Supreme Court focused its analysis on the adequacy of the redaction. The Supreme Court distinguished the confession in Gray from the fully
redacted confession in Richardson because the State of Maryland in Gray
ha[d] simply replaced the nonconfessing defendant's name with a kind of
symbol, namely the word 'deleted' or a blank space set off by commas. Id.
at 192, 140 L. Ed. 2d at 300. Therefore, the Supreme Court ruled that the
Gray confession was inadequate because, unlike the confession in
Richardson, it refer[red] directly to the 'existence' of the nonconfessing
defendant. Id.
The Supreme Court of North Carolina has held that Bruton and its
progeny would affect criminal trials in this state as follows:
The result is that in joint trials of defendants it is
necessary to exclude extrajudicial confessions unless
all portions which implicate defendants other than the
declarant can be deleted without prejudice either to
the State or the declarant. If such deletion is not
possible, the State must choose between relinquishing
the confession or trying the defendants separately.
The foregoing pronouncement presupposes (1) that the
confession is inadmissible as to the codefendant . . .
, and (2) that the declarant will not take the stand.
If the declarant can be cross-examined, a codefendant
has been accorded his right to confrontation.
State v. Tucker, 331 N.C. 12, 23-24, 414 S.E.2d 548, 554 (1992) (quoting
State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502 (1968)). The North
Carolina General Assembly codified these principles in N.C.G.S. § 15A-
927(c)(1), which provides:
When a defendant objects to joinder of charges against
two or more defendants for trial because an out-of-
court statement of a codefendant makes reference to him
but is not admissible against him, the court must
require the prosecutor to select one of the following
courses:
a. A joint trial at which the statement is not
admitted into evidence; or
b. A joint trial at which the statement is admitted
into evidence only after all references to the
moving defendant have been effectively deleted so
that the statement will not prejudice him; or
c. A separate trial of the objecting defendant.N.C.G.S. § 15A-927(c)(1) (1999). This Court has held that Bruton and its
progeny apply only when a confession by a nontestifying defendant is
'inadmissible as to the codefendant.' Tucker, 331 N.C. at 24, 414 S.E.2d
at 554 (quoting Fox, 274 N.C. at 291, 163 S.E.2d at 502). A statement is
inadmissible as to a codefendant only if it is made outside his presence
and incriminates him. Id. at 24, 414 S.E.2d at 554-55. In the case sub
judice, although McKeithan's statement was made outside of defendant's
presence, after it was redacted it did not incriminate defendant. We
conclude that because McKeithan's confession was fully redacted and did not
incriminate defendant, its admission into evidence did not violate
defendant's rights under the Confrontation Clause.
At trial, defendant made a general objection to the admission of
McKeithan's redacted confession into evidence, and the trial court
overruled this objection. Detective Wade read to the jury McKeithan's
redacted confession, which stated in essence: Lee asked McKeithan to meet
her at the Main Street Grill, where she offered him $200 or $300 Wednesday
and about a $1000 in three to four months by killing this dude named Pat.
After about three failed attempts to kill Pat, Lee suggested they kill
his son instead. McKeithan proposed that they kidnap Brian and hold him
for ransom, but Lee said that they would get more money if they killed the
boy. On the night of the crime, Lee and McKeithan bought two water jugs
from Winn-Dixie, emptied them out, and filled them with gasoline. After a
stop at Hardee World, they drove to the Brewington house. On the way
there, Lee said that they should make the crime look like a burglary. They
entered the back door of the house, carrying the jugs of gasoline and a
hunting knife. Lee told McKeithan to kill Brian and leave Grandma to
her. McKeithan was unable to stab Brian, but poured gasoline around the
bedroom and on the end of both beds. Lee brought a knife from the kitchen,
and she and McKeithan switched knives. Lee put her knife to Brian'sthroat, and Brian and Frances woke up and started screaming. McKeithan
stabbed Frances while Lee stabbed Brian. He then ran to the car to get his
lighter, but while he was outside, Lee lit a dishrag at the heater, which
she threw into the bedroom. Lee and McKeithan then ran to the car and
drove away.
Prior to trial, defendant objected to the adequacy of the
proposed redaction of McKeithan's confession and requested that it be
modified further. Specifically, defendant directed his complaints to the
blackouts on sections of the confessions. Defendant also complained that
the reference in McKeithan's confession that 'they' bought a knife at a
flea market was a direct reference to him and Lee. Finally, defendant
objected to the use of the words Grandma and grandmother in McKeithan's
confession because they referred to Frances Brewington. In response to
defendant's objections, the State then deleted the entire sentence which
contained the reference to anyone buying a knife. The State also retyped
the confession to eliminate the blackouts and any suggestion that the
confession had been altered. Further, after these additional
modifications, the appearance of the words Grandma and grandmother was
reduced to five instances where they were contextually appropriate.
At trial, following the conclusion of Detective Wade's testimony
with regard to McKeithan's confession, the trial court noted that it was
five o'clock and excused the jury until the following morning. After the
jury left the courtroom, the trial court asked the attorneys whether there
was anything that needed to be discussed. Counsel for McKeithan then
objected as follows:
Your Honor, the defendant McKeithan would object to the
redacted statement being what comes into evidence. We
insist and believe it's only fair that the entire
statement come into evidence, and we would make that
motion that the entire statement come in.
Counsel for defendant Brewington then stated, We have also made that same
objection numerous times, Your Honor, and we would renew it at this time.
The trial court denied the defense attorneys' objections and motions that
the entire statement come in. At no point did counsel for defendant
Brewington request a limiting instruction, and he did not further challenge
the sufficiency of the modified statement or last redaction, or question
the content of McKeithan's statement.
Now, on appeal, defendant contends that the admission of
McKeithan's confession into evidence without a limiting instruction
violated defendant's right to confront and cross-examine a witness against
him as set forth in Bruton. However, the concerns that the Supreme Court
addressed in Bruton and its progeny, as well as the concerns addressed by
this Court in Fox and its progeny, arise only if a defendant is
incriminated by his codefendant's statement. As this Court has long held,
[t]he sine qua non for application of Bruton is that the party claiming
incrimination without confrontation at least be incriminated. State v.
Jones, 280 N.C. 322, 340, 185 S.E.2d 858, 869 (1972). Accordingly, this
Court will not determine whether the introduction of McKeithan's statements
violated defendant's rights under the Confrontation Clause unless this
Court first concludes that McKeithan's statement implicated defendant.
Defendant contends that allowing the words Grandma and
grandmother to remain in the confession prejudiced him. Defendant
asserts that because he was the victim's grandson, any reference to
Grandma or grandmother was a reference to his existence and thereby
violated Bruton. As a result of the State's redaction, there were no
references to defendant by name, and the five remaining references to
Grandma or grandmother in McKeithan's confession are as follows:
We went to the back screen door and Vera handed me the
knife and told me to go kill Brian and leave Grandma upto her. I walked through the bathroom, down a little
hallway into Grandmother and Brian's room.
She put the knife to his throat. Brian started
screaming and crying and then his grandmother woke up
and said to me, Who are you?
. . . while I was stabbing Grandma, Vera was stabbing
Brian.
Vera threw the dishrag in the bedroom and you could
hear Grandma screaming, Oh, help me. Help me. Oh.
(Emphasis added.) Defendant contends that the case sub judice is analogous
to Gray, and defendant compares the inclusion of the words Grandma and
grandmother in the instant confession to the artless redactions contained
in the Gray confession. However, we conclude that the instant case is
distinguishable from Gray. There was no attempt to disguise the redactions
in the Gray confession because that confession contained blanks and the
word delete in place of defendant's name. Gray, 523 U.S. at 193, 140 L.
Ed. 2d at 300. The redactions in the Gray confession obviously encouraged
the jury to speculate about those omitted references and overemphasized
their importance. Id. at 193, 140 L. Ed. 2d at 301. The Supreme Court
also noted that in Gray, the prosecutor blatantly linked defendant to the
deleted names by asking a detective whether the defendant was arrested on
the basis of information contained in the codefendant's confession. Id. at
188, 140 L. Ed. 2d at 298.
In contrast, the confession in the case at bar was carefully
redacted by taking out complete sentences and groups of sentences that
mentioned, connected, or referenced the existence of defendant.
Additionally, McKeithan's confession as redacted retains a natural
narrative flow. It does not contain any contextual clues which indicate
that the confession was altered in any manner. Unlike the explicit
deletions which the Supreme Court disapproved in Gray, the alterations inMcKeithan's confession are subtle and neither attract the jury's attention
nor invite speculation.
Upon careful review of the record and the evidence introduced at
trial, including McKeithan's confession, we conclude that defendant in the
case sub judice was not incriminated by the inclusion of the words
Grandma and grandmother in McKeithan's confession. Unlike the instant
case, the cases where this Court has held that the redacted confession
violates Bruton are those where, notwithstanding the redaction of
defendant's name, the defendant is directly implicated by language which
invites the jury to infer that the unnamed third party referred to in the
confession was the defendant.
This Court reviewed this issue in State v. Littlejohn, 340 N.C.
750, 459 S.E.2d 629 (1995). In that case, the State introduced a redacted
confession made by Littlejohn which implicated his codefendant Dayson. Id.
at 755, 459 S.E.2d at 632. That statement did not include defendant
Dayson's name or any specific reference to him. Id. However, it did refer
to the three remaining, who divided the money. Id. at 756, 459 S.E.2d at
632. This Court recognized that the jury could determine through the
process of elimination that defendant Dayson had to be one of the three
remaining mentioned in the confession. Id. However, because there was
other overwhelming evidence against the defendant, this Court ruled that
the admission of the confession was harmless beyond a reasonable doubt.
Id.
The references to Grandma and grandmother in McKeithan's
redacted confession, unlike the confession in Littlejohn, do not refer to
the existence of someone else who was involved in the crime. The reference
to one of the victims by familial relationship does not directly or
indirectly identify or implicate defendant. Frances Brewington adopted
both defendant and his brother, Patrick, as her children. Therefore, shewas both their mother and their grandmother. Furthermore, because Brian
was Patrick's son, Frances was both Brian's grandmother and his great-
grandmother. Therefore, the references in McKeithan's confession to the
familial connection when referring to Frances Brewington do not point to
defendant. There is one particular instance in McKeithan's confession
where Frances is identified as Brian's grandmother: Brian started
screaming and crying and then his grandmother woke up and said to me, 'Who
are you?' (Emphasis added.) This statement clearly refers to Frances as
Brian's grandmother. The evidence before the jury showed that McKeithan
did not know defendant, Frances, or Brian prior to 12 June 1997.
Therefore, it is consistent with what the jury knew and understood about
McKeithan for the jury to infer that McKeithan merely adopted Vera Lee's
designation of the eighty-two-year-old lady in the bed as Grandma and
assumed her to be Brian's grandmother. All of McKeithan's references to
Grandma or grandmother in his redacted confession can be appropriately
understood as referring to Brian's grandmother.
Even if this Court were to conclude that the inclusion of the
five references to either Grandma or grandmother constituted error, we
conclude that such error is harmless beyond a reasonable doubt. This Court
has held that a Bruton violation does not automatically require reversal
of an otherwise valid conviction. State v. Hayes, 314 N.C. 460, 469, 334
S.E.2d 741, 747 (1985). In recognizing this rule, this Court reasoned as
follows:
On at least three occasions, the United States Supreme
Court has applied a harmless error analysis to claimed
Bruton violations. Brown v. United States, 411 U.S.
223, 36 L. Ed. 2d 208 (1973); Schneble v. Florida, 405
U.S. 427, 31 L. Ed. 2d 340 (1972); Harrington v.
California, 395 U.S. 250, 23 L. Ed. 2d 284
(1969). . . . [I]t is well established that where two
or more persons join together to commit a crime, each
of them, if actually or constructively present, is
guilty of the particular crime and any other crime
committed by the other or others in furtherance of oras a natural consequence of the common purpose. . . .
The question of which of the defendants actually
committed the assaults was irrelevant to the jury
verdicts finding each of the defendants guilty of all
of the crimes charged. The interlocking confessions
combined with the fact that certain items taken from
[the victims] were found in the possession of some of
the defendants provided overwhelming evidence of each
defendant's guilt as to each charge[,] and any Bruton
error which may have occurred was harmless beyond a
reasonable doubt.
Hayes, 314 N.C. at 469-70, 334 S.E.2d at 747.
In another decision, State v. Squire, 292 N.C. 494, 234 S.E.2d
563, cert. denied, 434 U.S. 998, 54 L. Ed. 2d 493 (1977), this Court
reached the same result as it did in Hayes. In Squire, this Court
concluded that if there was a Bruton error in admitting a codefendant's
statement which incriminated defendant Squire, then that error was harmless
beyond a reasonable doubt. Id. at 510, 234 S.E.2d at 573. In reaching
this conclusion, this Court determined that the evidence of the defendant's
guilt, including the defendant's own confession, was so overwhelming as to
render any possible Bruton violation harmless. Id. at 510, 234 S.E.2d at
572-73.
In the case sub judice, on the first day of trial and prior to
the admission of McKeithan's confession, defendant's own confession was
read to the jury. In that confession, defendant admitted his full
participation in the planning, initiation, and attempted coverup of the
murders of Frances and Brian. Defendant's confession was internally
consistent, and our review of the record reveals that defendant's
confession was corroborated by other objective evidence introduced at
trial. Defendant's confession was consistent with the testimony of Greg
Maitland, a neighbor of the Brewingtons, with regard to being startled
awake when Lee drove by the Brewington house and honked her vehicle's horn
in order to wake defendant. Defendant's confession was also corroborated
by physical evidence regarding the stab wounds to the victims, the knifeblade found in Frances' hip bone, and the knife handle found under her
body. During his confession, defendant gave a detailed description of that
knife and also took credit for developing the plan of stabbing the victims
and setting the house on fire. Deputy Fire Marshal Riddle's testimony at
trial corroborated the portion of defendant's confession where he admitted
to taking clothes for Frances' and Brian's funerals when he left the house
the morning of the murders, before they were committed. Riddle testified
that clothes were missing from defendant's closet in the bedroom. Kevin
Harrington testified that he sold defendant the insurance policies on
Patrick and Brian. Poshia Bell and Reverend J. Brewington corroborated the
importance to defendant of those polices in their testimony regarding
defendant's act of bringing the policies to church for members to anoint
and pray over. Wilson's testimony corroborated defendant's admission that
the original plan was to kill defendant's brother, Patrick; recover the
insurance proceeds; and purchase the double-wide mobile home he and Lee
wanted. Finally, the law enforcement officers found the insurance policies
in Lee's vehicle, corroborating defendant's admission that he removed the
policies from the house and put them in Lee's car the morning of the
murders.
Based on the foregoing, we conclude that McKeithan's redacted
confession did not identify, much less incriminate, defendant. Even
assuming arguendo that McKeithan's confession did incriminate defendant
through inference, we conclude that due to the overwhelming evidence of
defendant's guilt, particularly in light of defendant's own confession, any
Bruton error which may have occurred was harmless beyond a reasonable
doubt. Defendant also alternatively argues that his confession was not
reliable because (1) it did not reflect what he actually said; or (2) it
did accurately reflect what he said, but he merely told the officers what
they wanted to hear. Defendant argues that the jurors were instructed theywere required to determine whether defendant made the statements attributed
to him and, if he did, whether those statements were truthful and what
weight to give them. Defendant made no objection to this instruction.
Further, defendant now asserts that the prosecutor was allowed to argue in
closing arguments to the jury, without objection, that the details in
McKeithan's statement which overlapped those in defendant's statement could
have convinced the jury to find defendant's statements truthful. In light
of the foregoing, and particularly in view of our consideration of
defendant's first and third assignments of error, we conclude that these
arguments are without merit. This assignment of error is overruled.
[6]In his next assignment of error, defendant contends that the
trial court erred in granting the State's motion for joinder of defendants
Brewington and McKeithan for trial, and in refusing to grant defendant's
motions for severance.
In a written pretrial motion, the State moved for joinder of
defendants Brewington and McKeithan for trial. As basis for this motion,
the State argued that public policy strongly favored joinder in a case such
as this. Defendant and McKeithan were each charged with two counts of
first-degree murder, two counts of conspiracy to commit first-degree
murder, and the underlying offense of first-degree arson. Although the
State was proceeding on a theory of accessory before the fact against
defendant, joinder is still permissible pursuant to N.C.G.S. § 15A-926(b).
That section provides in part:
(2) Upon written motion of the prosecutor, charges
against two or more defendants may be joined for
trial:
a. When each of the defendants is charged with
accountability for each offense; or
b. When, even if all of the defendants are not
charged with accountability for each offense,
the several offenses charged:
1. Were part of a common scheme or plan; or
2. Were part of the same act or transaction;
or 3. Were so closely connected in time, place,
and occasion that it would be difficult
to separate proof of one charge from
proof of the others.
N.C.G.S. § 15A-926(b)(2) (1999). Defendant and McKeithan were charged with
the same offenses, but on different theories. The several offenses for
which defendant and McKeithan were charged were clearly part of a common
scheme or plan to murder Frances and Brian Brewington and to disguise their
murders by burning the Brewington house.
On appeal, defendant argues that joinder was improper and that
severance was necessary to ensure that he received a fair trial because the
introduction of McKeithan's confession without a limiting instruction
prejudiced defendant. Defendant does not present any new arguments from
those addressed in the previous assignment of error regarding this issue.
Accordingly, for the reasons previously stated, we conclude that the
admission of McKeithan's confession did not prejudice defendant and that
joinder of defendant and McKeithan for trial was proper. This assignment
of error is overruled.
[7]In his next assignment of error, defendant contends that the
short-form murder indictment was constitutionally insufficient to charge
him with first-degree murder. This Court has recently reaffirmed that
indictments for murder based on the short-form indictment statute, N.C.G.S.
§ 15-144 (1999), are in compliance with both the North Carolina and the
United States Constitutions. State v. Braxton, 352 N.C. 158, ___, ___
S.E.2d ___, ___ (2000) (No. 2A98). This assignment of error is overruled.
[8]Defendant contends by his next assignment of error that he is
entitled to a new sentencing proceeding because the trial court failed to
submit the (f)(7) statutory mitigating circumstance, defendant's age at the
time of the offense. N.C.G.S. § 15A-2000(f)(7) (1999). Defendant's
attorneys submitted to the trial court a written list of six statutory(including the catchall) and forty-four nonstatutory mitigating
circumstances for the jury to consider. The (f)(7) statutory circumstance,
defendant's age at the time of the offense, was not included on that list.
The trial court ruled that all of the listed circumstances, except for a
few of the nonstatutory circumstances, would be submitted as to both
murders. Defendant now contends that the trial court's consideration of
the mitigating circumstances formally requested by defendant's attorneys
was insufficient to fulfill the trial court's obligations concerning the
submission of statutory mitigating circumstances to the jury. We disagree.
This Court has recently addressed this issue and held that this
Court will not conclude that the trial court erred in failing to submit the
age mitigator where evidence of defendant's emotional immaturity is
counterbalanced by other factors such as defendant's chronological age,
defendant's apparently normal intellectual and physical development, and
defendant's lifetime experience. State v. Steen, 352 N.C. at ___, ___
S.E.2d at ___, slip op. at 36 (No. 530A98). The evidence in Steen revealed
that defendant was twenty-six at the time of the murder, but that defendant
suffered a head injury at twenty-one which caused organic brain damage and
resulted in a personality change. Id. The evidence also showed that
defendant's injury caused him to suffer borderline mental retardation and
that his memory was impaired. Id. However, there was also evidence that
defendant was competent to manage simple financial transactions and had a
fair ability to understand, retain and follow instructions. Id. Defendant
was gainfully employed and was able to perform his job duties proficiently.
Id. at ___, ___ S.E.2d at ___, slip op. at 37. Because there was evidence
which showed that defendant functioned adequately in society, this Court
concluded that the evidence of defendant's immaturity was not so
substantial as to require the trial court to submit the age mitigator. Id.
at ___, ___ S.E.2d at ___, slip op. at 37-38. In the case sub judice, defendant contends that he presented
substantial evidence of his limited intellectual and emotional capacity at
trial, primarily through the testimony of Dr. Jerry Noble, a clinical
psychologist. Dr. Noble testified that defendant's limited mental
capacity, which had declined from the level of low-average when defendant
was in public school ten years earlier, was the result of dementia,
probably the product of his AIDS infection. Defendant's full scale IQ
was 76, a level just above that of mental retardation. Defendant's
evidence tended to show that his social adjustment, as well as his ability
to understand situations and alternatives and choose between them in an
appropriate way, was even more impaired and in the lowest percentile of the
adult population. Dr. Noble testified that defendant's reduced
intellectual capacity, in combination with his dependent personality
disorder, made defendant very susceptible to being persuaded and dominated.
Therefore, defendant now argues on appeal that even though his
chronological age at the time of the murders was thirty-three years, he
presented substantial evidence that his psychological maturity was that of
a child.
However, the record at the sentencing proceeding reflects
evidence which counterbalances the foregoing evidence of defendant's mental
condition. During cross-examination, Dr. Noble conceded that he is not a
medical doctor; that he has had no medical training; and that the AIDS-
related dementia was his own diagnosis, not that of a treating physician.
Further, Dr. Delia Chiuton, the physician who actually treated defendant at
Dorothea Dix, observed no symptoms of AIDS-related dementia and did not
believe defendant had AIDS-related dementia. Unlike Dr. Noble, Dr. Chiuton
is a medical doctor who has had extensive training and experience in the
diagnosis and treatment of AIDS. Additionally, other evidence showed that
defendant was never placed in special-education classes, never repeated agrade, graduated from his school, passed the high school competency test,
and attended technical college. In the ninth grade, defendant's reading
vocabulary was in the top half of students taking the California
Achievement Test. Finally, prior to the murders, defendant had no criminal
record, and there was no evidence that defendant ever abused his girlfriend
and codefendant, Vera Sue Lee. Defendant was extremely active in his
church and participated in gospel singing groups. Even defendant's own
expert witness, Dr. Noble, conceded that defendant had a good work history
and that he had the intellectual capacity to understand that murder was
illegal and wrong.
Therefore, in light of the foregoing evidence that defendant was
thirty-three years of age at the time of the murders, appeared to be fairly
well adjusted in society, and had sufficient intelligence to attend
community college and establish a good work history, we cannot conclude
that the evidence of defendant's immaturity was so substantial as to
require the trial court to submit the age mitigator. This assignment of
error is overruled.
[9]In his next assignment of error, defendant contends that he
is entitled to a new sentencing proceeding because the trial court erred in
refusing to submit three nonstatutory mitigating circumstances which were
supported by the evidence and which a reasonable juror could have found to
have some mitigating value. In a written request, defendant asked the
trial court to submit six statutory and thirty-seven nonstatutory
mitigating circumstances to the jury. Defendant later revised this request
and asked the trial court to submit the same six statutory mitigating
circumstances and forty-four nonstatutory mitigating circumstances. During
the sentencing charge conference, the trial court stated its intention to
submit all of the statutory mitigating circumstances defendant requested;
the statutory catchall circumstance, N.C.G.S. § 15A-2000(f)(9); and fortyof the nonstatutory mitigating circumstances that defendant requested.
Defendant then objected to the trial court's decision to exclude the
following four nonstatutory mitigating circumstances defendant requested:
35. The defendant, Robbie Brewington, did not stab or
burn anyone.
36. The defendant, Robbie Brewington, was not an
active participant in the murders.
37. The defendant, Robbie Brewington, was not present
when the crime took place.
38. The codefendant, Vera Lee, received life in prison
for her participation in the crime.
Defendant concedes that the trial court properly refused to
submit number 38 because the jury did not hear evidence regarding Vera
Lee's life sentence. However, defendant contends that the trial court's
refusal to submit numbers 35, 36, and 37 prejudiced him because the jury
was erroneously precluded from considering them as a basis for a sentence
less than death. We disagree.
Generally, the trial court must submit nonstatutory mitigating
circumstances that are supported by the evidence and which the jury could
deem to have mitigating value when a defendant makes a timely written
request for the trial court to do so. See State v. Skipper, 337 N.C. 1,
55, 446 S.E.2d 252, 282 (1994), cert. denied, 513 U.S. 1134, 130 L. Ed. 2d
895 (1995). However, [a] trial court's error in failing to submit a
nonstatutory mitigating circumstance is harmless 'where it is clear that
the jury was not prevented from considering any potential mitigating
evidence.' Id. at 56, 446 S.E.2d at 283 (quoting State v. Green, 336 N.C.
142, 183, 443 S.E.2d 14, 38, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547
(1994)).
In the case sub judice, the trial court did not preclude the jury
from considering as evidence in mitigation that defendant was not present
when the murders occurred, that he did not physically stab or burn anyone,or that he was not an active participant in the murders or arson. Upon
defendant's request, the trial court submitted in regard to each murder the
(f)(4) statutory mitigating circumstance, that defendant was an accomplice
in or accessory to the capital felony committed by another person and his
participation was relatively minor. N.C.G.S. § 15A-2000(f)(4).
Additionally, the trial court instructed the jury on the (f)(4) mitigator
as follows:
Next, consider whether the murder was actually
committed by another person, and the defendant was only
an accomplice in the murder and his participation in
the murder was relatively minor. The distinguishing
feature of an accomplice or accessory is that he is not
the person who actually committed the murder.
You would find this mitigating circumstance if you
find that the victim was killed by another person and
that the defendant was only an accessory to the killing
and that the defendant's conduct constitutes relatively
minor participation in the murder. If one or more of
you finds by a preponderance of the evidence that the
circumstance exists, you would write yes. If none of
you find the circumstance exists, you would write no in
the space.
The trial court also instructed the jury on the catchall mitigating
circumstance:
Finally, members of the jury, you may consider any
other circumstance or circumstances arising from the
evidence which you deem to have mitigating value. If
one or more of you so find by a preponderance of the
evidence, you should so indicate by having your
foreperson write yes in the space provided after this
mitigating circumstance on the issues and
recommendation form. If none of you find any such
circumstance to exist, you would so indicate by having
your foreperson write no in that space.
This instruction invited the jurors to consider any and all mitigating
circumstances they deemed to exist from the evidence.
A trial court's failure or refusal to submit a defendant's
proposed nonstatutory mitigating circumstances separately or independently
is not error where requested mitigating circumstances are subsumed in
submitted mitigating circumstances. Skipper, 337 N.C. at 55-56, 446 S.E.2dat 282-83. In the instant case, the trial court's instruction regarding
the (f)(4) mitigator specifically refers to defendant's indirect
participation three times: the murder was actually committed by another
person; the distinguishing feature of an accomplice or accessory is that
he is not the person who actually committed the murder; and the victim
was killed by another person. This instruction fully encompassed and more
accurately stated the concepts that defendant wanted the jury to consider.
Also, because this was a statutory mitigating circumstance, any juror who
found it to exist was required to give it some mitigating value. We
conclude that defendant's proposed nonstatutory mitigating circumstances
were subsumed in the (f)(4) mitigating circumstance submitted to the jury
by the trial court.
Defendant also argues, however, that the submission of the (f)(4)
statutory mitigating circumstance did not satisfy his request for these
three nonstatutory mitigating circumstances because the jurors could
reasonably have found mitigating value in his absence from the crime scene,
even though finding that defendant's participation was not minor. However,
this argument overlooks the purpose of the (f)(9) statutory catchall
mitigating circumstance. The trial court's instruction on the (f)(9)
mitigator gave the jury the authority and full opportunity to consider any
and all facts, any other circumstance, in evidence which any member of
the jury found to have mitigating value. The jury could have given the
evidence that defendant was not present during the murders mitigating value
under this catchall circumstance. See State v. McLaughlin, 341 N.C. 426,
448, 462 S.E.2d 1, 12-13 (1995), cert. denied, 516 U.S. 1133, 133 L. Ed. 2d
879 (1996). No juror was precluded from considering, finding and attaching
mitigating value to defendant's absence from the scene of the murders and
arson. We therefore conclude the trial court committed no error inrefusing to submit these three nonstatutory mitigating circumstances. This
assignment of error is overruled.
[10]Defendant contends in his next assignment of error that the
trial court committed prejudicial error when it failed to peremptorily
instruct the jury in accordance with the North Carolina pattern jury
instructions on the (f)(1) mitigating circumstance, that defendant had no
significant history of prior criminal activity. N.C.G.S. § 15A-2000(f)(1).
For the reasons stated below, we conclude this assignment of error is
without merit.
At the close of the evidence in the penalty phase, defendant gave
the trial court a written list of the mitigating circumstances he wished to
be submitted to the jury. Defendant requested the trial court to
peremptorily instruct the jury, in accordance with the North Carolina
pattern jury instructions, on the (f)(1) statutory mitigating circumstance,
that defendant had no significant history of prior criminal activity.
During the charge conference, the prosecutor conceded that defendant was
entitled to a peremptory instruction on the (f)(1) mitigator. In its
charge to the jury, the trial court gave the following instruction:
The defendant has no significant history of prior
criminal activity before the date of the murder. The
defendant has the burden of establishing this
mitigating circumstance by a preponderance of the
evidence as explained to you. There is no evidence
that the defendant has been convicted of any criminal
activity. Accordingly, if one or more of you find the
facts to be as all the evidence tends to show, then you
will answer this mitigating circumstance yes.
At no point did defendant's attorneys object to this instruction during
trial. However, defendant now argues that he is entitled to a new
sentencing proceeding because the trial court's instruction was not in
accordance with the pattern jury instruction, which states:
The defendant has the burden of establishing this
mitigating circumstance by the preponderance of the
evidence, as I have explained to you.
Accordingly, as to this mitigating circumstance, I
charge you that if one or more of you find the facts to
be as all the evidence tends to show, you will answer
Yes as to Mitigating Circumstance Number (read
number) on the Issues and Recommendation form.
N.C.P.I.--Crim. 150.11 (1994).
The jury found the (f)(1) statutory mitigating circumstance to
exist as to each murder. Even though the trial court's instructions were
not precisely identical to the pattern jury instructions, they were
substantially so, and defendant cannot show how the trial court's
instruction prejudiced him. This assignment of error is overruled.
[11]In his final assignment of error, defendant contends that
the submission of the especially heinous, atrocious, or cruel aggravating
circumstance, N.C.G.S. § 15A-2000(e)(9), violated defendant's rights under
the North Carolina and United States Constitutions because it impermissibly
allowed the jury to find the existence of an aggravating circumstance based
solely upon his codefendants' actions. At trial, defendant objected to the
submission of the (e)(9) aggravating circumstance. As basis for this
objection, defendant argued that he was not present at the time of the
homicides and that there was no evidence that he intended the killings to
be carried out in a manner that was especially heinous, atrocious, or
cruel. The trial court overruled defendant's objection and submitted the
(e)(9) aggravating circumstance on the issues and recommendation as to
punishment forms with respect to both murders. On appeal, defendant
asserts that the (e)(9) aggravator was properly submitted only as to
McKeithan. Defendant concedes that the evidence shows that the murders
were committed in a manner that was especially heinous, atrocious, or
cruel, and that the evidence also shows that McKeithan was personally
culpable for the specific details of the killings. However, defendant
contends that because there was no evidence showing that he was personally
culpable for the specific details of the killings, the trial courtcommitted reversible error in submitting the (e)(9) aggravating factor as
to him. We disagree.
Defendant was tried and convicted of two counts of first-degree
murder, two counts of conspiracy to commit murder, and one count of arson.
Defendant admitted to planning the murders and enlisting his codefendants
to perform the murders. Because defendant was not present when the murders
were actually committed, defendant was convicted under the theory that he
was an accessory before the fact. Pursuant to N.C.G.S. § 14-5.2, North
Carolina law does not recognize any guilt or sentencing distinctions
between an accessory before the fact and a principal to a felony. This
statutory section provides in part:
All distinctions between accessories before the
fact and principals to the commission of a felony are
abolished. Every person who heretofore would have been
guilty as an accessory before the fact to any felony
shall be guilty and punishable as a principal to that
felony.
N.C.G.S. § 14-5.2 (1999). This Court has held that accessories before the
fact, who do not actually commit the crime, and indeed may not have been
present, can be convicted of first-degree murder under a theory of aiding
and abetting. State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 174-75
(1996), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d 1022 (1997). A showing
of defendant's presence or lack thereof is no longer required. Id.
The United States Supreme Court has held that capital punishment
must be tailored to the particular defendant's personal responsibility and
moral guilt. Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140 (1982).
In construing Enmund, this Court stated:
In Enmund, the Court held that the Eighth Amendment
forbids the imposition of the death penalty on 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. Id. at 797, 73 L.Ed. 2d at 1151. Thus, an Enmund issue only arises when
the State proceeds on a felony murder theory.
State v. Robinson, 342 N.C. 74, 87, 463 S.E.2d 218, 226 (1995), cert.
denied, 517 U.S. 1197, 134 L. Ed. 2d 793 (1996). Accordingly, the
constitutional concerns that the United States Supreme Court addressed in
Enmund do not apply in a case where a defendant intend[s] that a killing
take place or that lethal force will be employed. Id.
Defendant argues that the submission of the (e)(9) aggravating
circumstance as to him was erroneous under our recent decision in State v.
McNeil, 350 N.C. 657, 518 S.E.2d 486 (1999), cert. denied, ___ U.S. ___,
146 L. Ed. 2d 321 (2000). The defendant in McNeil argued that the trial
court's instructions to the jury regarding the (e)(9) aggravating
circumstance erroneously allowed the jury to consider the behavior of
McNeil's accomplice in committing the murder. However, this Court approved
the submission of the (e)(9) aggravator because there was sufficient
evidence showing that McNeil's individual acts toward the victim were
especially heinous, atrocious, or cruel. Id. at 693-95, 518 S.E.2d at 508-
09. Defendant therefore argues that the clear implication of McNeil is
that submission of the (e)(9) aggravator requires evidence sufficient to
show that the defendant was personally involved in the infliction of the
particular brutality that justifies a conclusion that the murder was
especially heinous, atrocious, or cruel.
This Court has held:
In determining whether the evidence is sufficient to
support the trial court's submission of the especially
heinous, atrocious, or cruel aggravator, we must
consider the evidence 'in the light most favorable to
the State, and the State is entitled to every
reasonable inference to be drawn therefrom.' State v.
Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998)
(quoting [State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d
316, 328, sentence vacated on other grounds, 488 U.S.
807, 102 L. Ed. 2d 18 (1988)]), cert. denied, [526 U.S.
1135, 143 L. Ed. 2d 1015] (1999). [C]ontradictions
and discrepancies are for the jury to resolve; and allevidence admitted that is favorable to the State is to
be considered. Robinson, 342 N.C. at 86, 463 S.E.2d
at 225.
McNeil, 350 N.C. at 693, 518 S.E.2d at 508. This Court has also stated
that capital sentencing must focus on the individual defendant, his
crimes, personal culpability, and mitigation, State v. Gibbs, 335 N.C. 1,
67, 436 S.E.2d 321, 359 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d
881 (1994), and that the particular facts of each case dictate whether the
(e)(9) statutory aggravating circumstance was properly submitted, McNeil,
350 N.C. at 693-94, 518 S.E.2d at 508. Additionally, evidence regarding
the circumstances of the murders is relevant and admissible to support the
submission of an aggravating circumstance. The fact that defendant was not
present when the murders occurred, and that a codefendant actually
committed the murders, is a matter that a jury would properly consider in
determining the weight to give an aggravating circumstance and in balancing
the aggravating and mitigating circumstances. Furthermore, this Court has
stated that in determining the sufficiency of the evidence supporting the
(e)(9) aggravating circumstance, the evidence must be considered in the
light most favorable to the State and with all reasonable inferences to be
drawn from the evidence. State v. Moseley, 336 N.C. 710, 722, 445 S.E.2d
906, 913 (1994), cert. denied, 513 U.S. 1120, 130 L. Ed. 2d 802 (1995).
Defendant's confession reveals that defendant and Lee initially
developed the idea to murder the victims in order to collect the life
insurance proceeds. Defendant told Lee and McKeithan to sneak into the
unlocked house after he left for work, stab the victims, and then burn the
house to disguise the murders. Defendant directed McKeithan and Lee to use
gasoline so the house would burn quickly. Because defendant knew that the
house would be burned on the morning of the murders, he removed the
insurance policies and his Sunday clothes from the house so they would notbe destroyed in the fire. Defendant also confessed that he purchased the
knife for McKeithan and Lee to use in the murders.
From this evidence, a reasonable juror could infer that defendant
intended for McKeithan and Lee to sneak into the house while the victims
were asleep and stab one victim and then the other. Defendant was aware
that the victims shared a bedroom, and because he provided only one knife
for the two murders, the jury could reasonably infer that defendant knew
the stabbings would not be simultaneous. A reasonable juror could also
infer that because the victims shared a bedroom and because defendant knew
that the killers would necessarily be required to move from one victim in
the room to the other, the stabbings could not occur at the same time.
Under this scenario, it was likely that death would not be instantaneous
for one or both victims or that one or both victims would be left without a
fatal wound after the initial attack. Any consideration of these planned
circumstances, which logic dictates must have occurred, would clearly call
to mind that at least one and possibly both victims would be aware of these
ongoing assaults upon them, of the pain they were suffering, and of their
probable imminent death, and thus would be placed in terror for some
moments.
It is clear from the evidence that defendant and his codefendants
carefully considered and planned these killings in considerable detail,
including how the house would be burned. Defendant told Lee to use
gasoline, intending that the house burn quickly to cover the stabbings.
Defendant knew Lee and McKeithan would not stay in the house once the fire
began. Therefore, if the stab wounds were not immediately fatal, the fire
would ultimately cause the victims' deaths. The evidence shows this is, in
fact, the way both victims died. Because of the plan so carefully designed
and put in motion by defendant, his eight-year-old nephew and his
grandmother, who gave defendant a home, burned to death. In the context ofespecially heinous, atrocious, or cruel, it is difficult to imagine a
human mind that could desire such an end for any two lives, and for mere
money.
Under the particular circumstances of this case, we conclude that
there was sufficient evidence from which the jury could infer and conclude
that defendant intended and directed McKeithan and Lee to perform the
murders in exactly the manner they employed. Even though defendant was
not present when McKeithan and Lee committed the murders, defendant was
personally involved in planning the details of the murders. Defendant also
took deliberate steps to enable the murders to proceed according to his
instructions. Defendant does not dispute that the manner in which the
victims were murdered is sufficient to support the (e)(9) aggravating
circumstance. Because defendant directed that each victim experience the
deaths which they suffered, we conclude that the trial court did not err in
submitting the (e)(9) aggravating circumstance in this case. This
assignment of error is overruled.
Defendant raises seven additional issues which he concedes have
been previously decided contrary to his position by this Court: (1) the
North Carolina death penalty statute is unconstitutional; (2) the trial
court erred by failing to prohibit the State from death-qualifying the
jury; (3) the trial court erred in denying defendant's motion to examine
prospective jurors regarding their opinions on parole eligibility; (4) the
trial court erred in excluding evidence of codefendant's Lee's life
sentence; (5) the trial court erred in instructing the jury that it was the
jury's duty to recommend a sentence of death if it found the mitigating
circumstances were insufficient to outweigh the aggravating circumstances
and that the aggravating circumstances, when considered with the mitigating
circumstances, were sufficiently substantial to call for the death penalty;(6) the trial court erred in defining mitigating circumstances as set forth
in the pattern jury instructions; and (7) the standards set by the Supreme
Court of North Carolina for its proportionality review pursuant to N.C.G.S.
§ 15A-2000(d)(2) are vague and arbitrary.
Defendant raises these issues for the purpose of permitting this
Court to reexamine its prior holdings and also for the purpose of
preserving them for possible further judicial review of this case. We have
considered defendant's arguments on these issues and find no compelling
reason to depart from our prior holdings. These assignments of error are
overruled.
[12]Having concluded that defendant's trial and capital
sentencing proceeding were free from prejudicial error, we must now review
the record and determine: (1) whether the evidence supports the
aggravating circumstances found by the jury and upon which the sentencing
court based its sentence of death; (2) whether the sentence was entered
under the influence of passion, prejudice or any other arbitrary factor;
and (3) whether the sentence is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant. N.C.G.S. § 15A-2000(d)(2). We have thoroughly reviewed the
record, transcript and briefs in this case. We conclude that the record
fully supports the aggravating circumstances found by the jury. Further,
we find no indication that the sentence of death in this case was imposed
under the influence of passion, prejudice or any other arbitrary factor.
We therefore turn to our final statutory duty of proportionality review.
In the present case, defendant was found guilty of two counts of
murder under the theories of premeditation and deliberation and felony
murder. Following a capital sentencing proceeding, the jury found three
aggravating circumstances submitted as to the murder of Brian Brewington: (i) the murder was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6);
(ii) the murder was especially heinous, atrocious, or cruel, N.C.G.S. §
15A-2000(e)(9); and (iii) the murder was part of a course of conduct,
including defendant's commission of other crimes of violence against
another person or persons, N.C.G.S. § 15A-2000(e)(11). The jury also found
three aggravating circumstances submitted as to the murder of Frances
Brewington: (i) the murder was committed while engaged, or an aider or
abettor, in the commission of arson, N.C.G.S. § 15A-2000(e)(5); (ii) the
murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-
2000(e)(9); and (iii) the murder was part of a course of conduct, including
defendant's commission of other crimes of violence against another person
or persons, N.C.G.S. § 15A-2000(e)(11).
The trial court submitted and the jury found, as to each murder,
two statutory mitigating circumstances: (i) defendant had no significant
history of prior criminal activity, N.C.G.S. § 15A-2000(f)(1); and (ii)
defendant acted under domination of another person, N.C.G.S. § 15A-
2000(f)(5). The trial court also submitted the statutory catchall
circumstance, but the jury did not find [a]ny other circumstance arising
from the evidence which the jury deems to have mitigating value. N.C.G.S.
§ 15A-2000(f)(9). Of the forty nonstatutory mitigating circumstances
submitted as to each murder, the jury found five to exist.
One purpose of our proportionality review is to eliminate the
possibility that a sentence of death was imposed by the action of an
aberrant jury. State v. Lee, 335 N.C. 244, 294, 439 S.E.2d 547, 573,
cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994). Another is to guard
against the capricious or random imposition of the death penalty. State
v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied,
448 U.S. 907, 65 L. Ed. 2d 1137 (1980). In conducting proportionality
review, we compare the present case with other cases in which this Courthas concluded that the death penalty was disproportionate. State v.
McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512
U.S. 1254, 129 L. Ed. 2d 895 (1994). This Court has found the death
penalty disproportionate in seven cases: State v. Benson, 323 N.C. 318,
372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987);
State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other
grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, and by State v.
Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C.
669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163
(1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v.
Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).
We conclude that this case is not substantially similar to any
case in which this Court has found the death penalty disproportionate.
First, defendant was convicted of two counts of first-degree murder. This
Court has never found the death sentence disproportionate in a case where
the jury has found defendant guilty of murdering more than one victim.
State v. Goode, 341 N.C. 513, 552, 461 S.E.2d 631, 654 (1995). In
addition, the jury convicted defendant under the theory of premeditation
and deliberation. This Court has stated that [t]he finding of
premeditation and deliberation indicates a more cold-blooded and calculated
crime. State v. Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989),
sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990).
The jury in this case also found all three of the aggravating circumstances
submitted as to each murder conviction. In none of the cases where this
Court has found the death penalty disproportionate has the jury found three
aggravating circumstances. State v. Trull, 349 N.C. 428, 458, 509 S.E.2d
178, 198 (1998), cert. denied, ___ U.S. ___, 145 L. Ed. 2d 80 (1999).
Finally, of the cases in which this Court has found the death penalty
disproportionate, the jury found the especially heinous, atrocious, orcruel aggravating circumstance in only two cases. Stokes, 319 N.C. 1, 352
S.E.2d 653; Bondurant, 309 N.C. 674, 309 S.E.2d 170.
Neither Stokes nor Bondurant is similar to this case. As we have
noted, defendant here was convicted of murder on the basis of premeditation
and deliberation as well as under the felony murder rule. The defendant in
Stokes, however, was convicted solely on the basis of the felony murder
rule. In Bondurant, the defendant exhibited his remorse, as he readily
spoke with policemen at the hospital, confessing that he fired the shot
which killed [the victim]. Bondurant, 309 N.C. at 694, 309 S.E.2d at 183.
Defendant in the case sub judice did not exhibit the kind of conduct we
recognized as ameliorating in Bondurant. Flippen, 349 N.C. at 278, 506
S.E.2d at 711.
It is also proper for this Court to compare this case with the
cases in which we have found the death penalty to be proportionate. State
v. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although this Court
reviews all of the cases in the pool when engaging in our duty of
proportionality review, we have repeatedly stated that we will not
undertake to discuss or cite all of those cases each time we carry out that
duty. Id. It suffices to say here that we conclude that the present case
is more similar to certain cases in which we have found the sentence of
death proportionate than to those in which we have found the sentence of
death disproportionate or to those in which juries have consistently
returned recommendations of life imprisonment.
Finally, this Court has noted that similarity of cases is not the
last word on the subject of proportionality. State v. Daniels, 337 N.C.
243, 287, 446 S.E.2d 298, 325 (1994), cert. denied, 513 U.S. 1135, 130 L.
Ed. 2d 895 (1995). Similarity merely serves as an initial point of
inquiry. Id. Whether the death penalty is disproportionate ultimatelyrest[s] upon the 'experienced judgments' of the members of this Court.
State v. Green, 336 N.C. at 198, 443 S.E.2d at 47.
Based on the foregoing and the entire record in this case, we
cannot conclude as a matter of law that the sentence of death was excessive
or disproportionate. We hold that defendant received a fair trial and
capital sentencing proceeding, free of prejudicial error.
NO ERROR.
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