STATE OF NORTH CAROLINA
v.
GARY DEAN GREENE
Appeal as of right by defendant pursuant to N.C.G.S. §
7A-27(a) from a judgment imposing a sentence of death entered on
28 May 1998 by Lamm, J., after a capital resentencing proceeding
held in Superior Court, Caldwell County, upon defendant's
conviction of first-degree murder. Heard in the Supreme Court
11 October 1999.
Michael F. Easley, Attorney General, by William P. Hart,
Special Deputy Attorney General, and Amy C. Kunstling,
Assistant Attorney General, for the State.
Marshall L. Dayan for defendant-appellant.
FREEMAN, Justice.
Defendant, Gary Dean Greene, was indicted on 8 December 1986
for robbery with a dangerous weapon and the first-degree murder
of his father, Pressly (“Press”) Greene. He was tried capitally
before a jury in August 1987 in Superior Court, Caldwell County.
The jury found defendant guilty of robbery with a dangerous
weapon and of first-degree murder on the basis of premeditation
and deliberation and under the felony murder rule. The trial
court subsequently sentenced defendant to death for the murder
conviction and to forty years' imprisonment for the robbery
conviction. On appeal, this Court found no error. State v.
Greene, 324 N.C. 1, 376 S.E.2d 430 (1989). The United States Supreme Court allowed defendant's writ of
certiorari, vacating the sentence of death and remanding for
further consideration in light of McKoy v. North Carolina, 494
U.S. 433, 108 L. Ed. 2d 369 (1990). Greene v. North Carolina,
494 U.S. 1022, 108 L. Ed. 603 (1990). This Court found McKoy
error and remanded the case for a new capital sentencing
proceeding. State v. Greene, 329 N.C. 771, 408 S.E.2d 185
(1991). Defendant was again sentenced to death on 28 May 1998 in
Superior Court, Caldwell County.
At the resentencing proceeding, the State's evidence tended
to show that in early 1986, defendant and his girlfriend since
the summer of 1984, Cindy Jones Hopson, moved into a trailer
behind the home of defendant's parents. Thereafter, defendant
continued a pattern of habitually stealing money from his father.
On 1 May 1986, around 3:30 p.m., Hopson picked defendant up
from work in defendant's car. They used the last of their money
to buy beer and drank most of it while riding around in the car.
Upon returning to the trailer, defendant and Hopson drank the
remaining beer. Wanting more, defendant told Hopson he was going
to kill Press and left the trailer carrying a shotgun. When
defendant returned to the trailer, he was soaking wet, had
“speckles of blood” on his shoes, and was carrying the shotgun.
He informed Hopson, “I beat the son of a bitch to death.”
Defendant asked Hopson to get him a change of clothes. As
Hopson walked to the bedroom to get the clothes, she saw
defendant standing in the bathroom holding a wad of money in one
hand. Defendant changed and put his wet clothes and shotgun in a
brown paper grocery bag. Defendant and Hopson then left the trailer to take the dog
belonging to Hopson's mother to get a haircut. Having forgotten
the dog's chain, Hopson returned to the trailer for it at which
time she noticed water running out of the basement of Press'
house. Defendant told her the water was from his rinsing the
basement to wash away Press' blood. Defendant said that he first
hit his father when Press was bent over the well in the basement
and that he dragged Press' body to the bottom of the basement
stairs to make it look like Press had accidentally fallen down
the stairs.
On the way to the home of Hopson's mother, defendant and
Hopson stopped at a local grocery store to purchase beer with the
money that defendant had stolen from his father. As they
continued their trip, they drove over the Catawba River bridge on
Highway 321, where defendant threw into the river the bag
containing his wet clothes and shotgun. Later that same evening,
on the return trip to his trailer, defendant threw the shoes he
was wearing at the time of the murder into the Catawba River.
Further along their route home, defendant instructed Hopson to
pull over so he could conceal the money he had stolen. Defendant
told Hopson he would kill her if she ever breathed a word of what
he had done and she should never admit to anything.
When defendant and Hopson returned home, they were told that
defendant's mother had discovered Press dead and had called law
enforcement. The investigating officer, Captain Danny Barlow,
from the Caldwell County Sheriff's Department, Hopson, and
defendant went to defendant's trailer where defendant offered to
allow Barlow to search the trailer. The Caldwell County Sheriff's Department closed Press' case
on 27 May 1986, ruling the death accidental.
Sometime after May 1986, Hopson moved out of the trailer.
One night in July 1986, when Hopson and her roommate, Susan
Newton, were drinking, she told Newton that defendant had
murdered Press. In August 1986, the State Bureau of
Investigation (“SBI”) reopened the case. In October, the SBI
interviewed Newton and learned of the July conversation. Hopson
eventually told SBI Special Agent Rodney Knowles that defendant
murdered his father, Press.
Luminol testing revealed the presence of blood in Press'
basement. Additional luminol testing at defendant's trailer
showed the presence of blood on the bed, the floor of the
bathroom, the commode area, the bathtub, and the sink. On
8 December 1986, defendant was charged with the first-degree
murder of his father.
Defendant first contends that the trial court erred by
instructing a prospective juror in the presence of other jurors
that life imprisonment means imprisonment in the state's prison
for life, and that he should not consider what some other arm of
the government might do in the future. We disagree.
This Court has determined that a defendant's eligibility for
parole is not a proper matter for consideration by a jury in a
capital case. State v. White, 343 N.C. 378, 389, 471 S.E.2d 593,
599, cert. denied, 519 U.S. 936, 136 L. Ed. 2d 229 (1996). Here,
the trial court was faced with a prospective juror who asked, in
the presence of other prospective jurors during jury selection,
whether parole was a possibility if defendant received a life
sentence. Because defendant committed the murder of his fatherprior to the 1 October 1994 change in North Carolina's sentencing
laws, he was eligible for parole and was not entitled to an
instruction to the jury that a life sentence means a sentence of
life without parole. See State v. Skipper, 337 N.C. 1, 43, 446
S.E.2d 252, 275 (1994), cert. denied, 513 U.S. 1134, 130 L. Ed.
2d 895 (1995). Therefore, the trial court appropriately
instructed the juror in language set forth in the pattern jury
instructions for capital murders committed prior to 1 October
1994, N.C.P.I.--Crim. 150.10 n.2 (1998), and previously approved
by this Court in State v. Robbins, 319 N.C. 465, 518, 356 S.E.2d
279, 310, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987).
Although defendant argues that the trial court's instruction
amounted to plain error, we have previously decided that plain
error analysis applies only to instructions to the jury and
evidentiary matters. See State v. Atkins, 349 N.C. 62, 505
S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036
(1999). “We decline to extend application of the plain error
doctrine to situations in which the trial court has failed to
give an instruction during jury voir dire which has not been
requested.” Id at 81, 505 S.E.2d at 109. Furthermore, defendant
failed to object to the trial court's remarks to the jurors about
the meaning of a life sentence. Therefore, defendant has waived
his right to assign error to the trial court's instructions. See
State v. Anderson, 350 N.C. 152, 187, 513 S.E.2d 296, 317, _ U.S.
_, 145 L. Ed. 2d 326 (1999).
In his second argument, defendant contends the trial court
abused its discretion by excusing for cause a juror who was fit
to serve, in violation of the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution; Article I, Sections19, 23, and 27 of the North Carolina Constitution; and N.C.G.S. §
15A-1212 (1999). We disagree.
The decision “'[w]hether to allow a challenge for cause in
jury selection is . . . ordinarily left to the sound discretion
of the trial court which will not be reversed on appeal except
for abuse of discretion.'” State v. Stephens, 347 N.C. 352, 365,
493 S.E.2d 435, 443 (1997) (quoting State v. Locklear, 331 N.C.
239, 247, 415 S.E.2d 726, 731 (1992)), cert. denied, ___ U.S.
___, 142 L. Ed. 2d 66 (1998). In the present case, juror Watson,
the son of a preacher, told the prosecutor that he had reasonably
strong religious beliefs about the death penalty which he had
held for a long period of time. He said that, because of those
beliefs, it would be hard for him to find the death penalty
warranted under any circumstances. He further stated that his
religious beliefs would substantially impair his duty as a juror
to recommend to the trial court a punishment of death if the
evidence warranted it. Upon further questioning, Mr. Watson
concluded that he could follow the law and “go by which one I
thought was right, whoever proved the most.” Thereafter he
stated that, if he did that and he thought the death penalty was
right, “I'd have [to] vote for that.” However, he then said,
“and that would be against what I believe.” In State v. Davis,
325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905,
110 L. Ed. 2d 268 (1990), this Court, confronted with similar
challenges for cause, held:
The conflicting answers given by these prospective
jurors illustrate clearly the United States Supreme
Court's conclusion that a prospective juror's bias may,
in some instances, not be provable with unmistakable
clarity. In such cases, reviewing courts must defer to
the trial court's judgment concerning whether theprospective juror would be able to follow the law
impartially.
Id. at 624, 386 S.E.2d at 426.
The record fails to show the trial court abused its
discretion in determining that the juror's views on the death
penalty would have prevented or substantially impaired the
performance of his duties as a juror in accordance with his oath
and the court's instructions. The trial court properly removed
the challenged juror.
In his third assignment of error, defendant contends that
the trial court violated the Eighth and Fourteenth Amendments to
the United States Constitution by limiting his cross-examination
of State's witness Cindy Hopson as to her criminal record. He
contends that he was prevented from attacking the witness'
credibility and thus prevented from presenting relevant
mitigating evidence. We disagree.
Ordinarily, notice of intent to impeach a witness with a
conviction more than ten years old is necessary to provide an
adverse party with a fair opportunity to contest the use of such
evidence. See N.C.G.S. § 8C-1, Rule 609(b) (1999). The Rules of
Evidence do not apply in sentencing proceedings; however, they
may be helpful as a guide to reliability and relevance. See
State v. Bond, 345 N.C. 1, 31, 478 S.E.2d 163, 179, (1996), cert.
denied, __U.S.__, 138 L. Ed. 2d 1022 (1997). The trial judge
properly used Rule 609(b) as a guide in this case. Defendant did
not give notice of his intent to impeach Hopson, nor did he make
an offer of proof as to whether Hopson was actually convicted of
the offenses, what the convictions were, the exact nature of the
offenses involved, or how long ago the convictions were obtained. Thus, there is nothing in the record which would show this Court
that defendant might have been prejudiced by the trial court's
excluding impeachment evidence or that such information might
have been relevant.
Additionally, defendant has waived appellate review of an
alleged constitutional issue because he did not raise the
constitutional issue in the trial court. See State v. Call, 349
N.C. 382, 424, 508 S.E.2d 496, 513 (1998).
In defendant's fourth assignment of error, defendant
contends that the trial court erred in failing to submit to the
jury the mitigating circumstance of no significant history of
prior criminal activity after defendant requested it. N.C.G.S. §
15A-2000(f)(1)(1999). At the resentencing hearing, evidence
before the court of defendant's prior criminal record included
the following: For the eighteen years prior to the murder of his
father and since attaining the age of nineteen in 1968, he had
been convicted of twelve offenses directly involving alcohol, one
count of assault on a female, one drug offense, one count of
damage to property, one count of burning personal property, and
one count of felonious larceny. In addition, there was evidence
of recent and recurrent uncharged criminal activity reflecting
that, in the two years prior to robbing and murdering his father,
defendant habitually went into his father's home and stole money.
Hopson testified that
[w]hen Pressley would work in the garden, he would
always put his work clothes on. And he would take his
clean clothes, everyday clothes, and lay them in his
bedroom. And Gary would go up through the basement and
go up and get always even denominations, you know, like
a hundred, 200, not an off figure. But this particular
day Pressley had his work clothes on, but he had his
billfold on him. Because Gary stated to me he said,
“Damn, he's got his billfold on him.”
Hopson also testified that during her two-year relationship
with defendant, he would hit her.
We have previously held:
In deciding whether to submit this statutory mitigating
circumstance, the trial court must determine whether a
rational jury could conclude that the defendant had no
significant history of prior criminal activity. State
v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988). A
defendant's criminal history is considered
“significant” if it is likely to affect or have an
influence upon the determination by the jury of its
recommended sentence. Id.
State v. Jones, 339 N.C. 114, 157, 451 S.E.2d 826, 849-50 (1994),
cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995).
We note that there has been some confusion as to the exact
type of crime and number of offenses which determine when the
(f)(1) mitigator should or should not be given. In an effort to
clarify the law, we once again stress that the focus should be on
whether the criminal activity is such as to influence the jury's
sentencing recommendation. See State v. Williams, 343 N.C. 345,
371, 471 S.E.2d 379, 393 (1996), cert. denied, 519 U.S. 1061, 136
L. Ed. 2d 618 (1997).
In the present case, much of defendant's prior criminal
activity was recurrent, recent, and similar in nature to his
conduct the day of the robbery and murder of his father, and for
these reasons significant. Most of the criminal activity which
resulted in defendant's prior convictions occurred after
defendant was thirty years old and within seven years of the
murder of his father. Prior to robbing his father and beating
him to death with a shotgun, defendant habitually sneaked into
his father's house and stole money while his father was outside
working. During that same time, defendant would assault his
girlfriend, Cindy Hopson. Thus, defendant had a significanthistory of recurrent and escalating criminal conduct, much of
which was close in time to the robbery-murder. When the trial
court is deciding whether a rational juror could find the (f)(1)
mitigating circumstance to exist, the nature and age of the prior
criminal activities are important, and the mere number of
criminal activities is not dispositive. State v. Walls, 342 N.C.
1, 56, 463 S.E.2d 738, 767 (1995), cert. denied, 517 U.S. 1197,
134 L. Ed. 2d 794 (1996). Furthermore, unadjudicated crimes may
properly be considered in determining the sufficiency of the
evidence under (f)(1). State v. Ingle, 336 N.C. 617, 643, 445
S.E.2d 880, 893 (1994), cert. denied, 514 U.S. 1020, 131 L. Ed.
2d 222 (1995).
Defendant's conduct in the robbery-murder was strikingly
similar to his lengthy history of prior criminal activity and
convictions involving alcohol-related offenses, drugs, damage to
property, assault, larceny, and his recent habitual thefts from
his father. On the day of the robbery-murder, defendant and his
girlfriend had been sharing a twelve-pack of beer. Defendant was
upset that his father had his wallet with him because he wanted
more beer, and he wanted, as he so often had before, to steal
money from his father. The record also shows that he wanted to
kill his father to better insure his share of an inheritance.
After mercilessly and violently beating his seventy-four-year-old
father to death with a shotgun, stealing his money, cleaning up
the bloody crime scene, changing his bloodstained clothes, and
disposing of the evidence, defendant went to buy more beer with
the money he had stolen from his father. In light of these
similarities to defendant's repeated, recent, and escalating
criminal activities related to substance abuse, stealing, andviolence, the trial court correctly determined that no rational
juror could have concluded that defendant's prior criminal
activity was insignificant and thus that this history would not
have influenced or had an effect upon the jury verdict as a
mitigating circumstance. The trial court correctly reasoned
defendant's past criminal history was significant. See, e.g.,
State v. Sexton, 336 N.C. 321, 375, 444 S.E.2d 879, 910, cert.
denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994).
Defendant concedes that his next two arguments have been
previously decided contrary to his position by this Court:
(1) the trial court erred by permitting jurors to reject
submitted nonstatutory mitigating circumstances on the basis that
they had no mitigating value, and (2) the trial court erred by
using the term “may” in its instructions in sentencing Issues
Three and Four.
Defendant has raised these issues so that we may reexamine
our prior holdings and to preserve these issues for possible
further judicial review. We have considered defendant's
arguments and find no compelling reason to depart from our prior
holdings.
Having concluded that defendant's capital sentencing
proceeding was free from prejudicial error, we must now review
the record and determine: (1) whether the evidence supports the
aggravating circumstances found by the jury; (2) whether the
sentence of death was imposed 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). After having reviewed the record,transcript, and briefs in this case, we conclude that they fully
support the aggravating circumstances found by the jury. We
further conclude that the sentence of death in this case was not
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 first-
degree murder on the basis of premeditation and deliberation and
under the felony murder rule. He was also convicted of robbery
with a dangerous weapon. Following a capital sentencing
proceeding, the jury found two aggravating circumstances:
(1) the murder was committed while defendant was engaged in the
commission of a robbery, N.C.G.S. § 15A-2000(e)(5); and (2) the
murder was committed for pecuniary gain, N.C.G.S. §
15A-2000(e)(6).
The trial court submitted no statutory mitigating
circumstances. At least one juror found only one of the five
nonstatutory mitigating circumstances which had been submitted
for its consideration, “whether the defendant had a good
relationship with his father prior to the murder.” No juror
found any mitigating circumstances under the statutory catchall,
N.C.G.S. § 15A-2000(f)(9).
Proportionality review is designed to “eliminate the
possibility that a person will be sentenced to die by the action
of an aberrant jury.” State v. Holden, 321 N.C. 125, 164-65, 362
S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed.
2d 935 (1988). As already noted, the record shows that the
jurors deliberated and made their findings as to the aggravating
and mitigating circumstances as well as their recommendation ofdeath without undue passion or prejudice. No improper
considerations appear in the record.
Neither is the imposition of the death penalty in
defendant's case disproportionate or excessive in comparison to
similar cases. First, 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.” Artis, 325 N.C. at 341,
384 S.E.2d at 506. Second, defendant showed no contrition for
the heartless murder of his aging father, a crime he sought to
make look like an accident. In our prior consideration of this
case on proportionality review, this Court specifically focused
on the relationship of defendant to his victim, the victim's
position of enhanced vulnerability, the number of blows
inflicted, and the attempt to make the murder look like an
accident. Greene, 324 N.C. at 25-26, 376 S.E.2d at 445. This
Court found that defendant's actions “show a meanness on the part
of a mature, calculating adult without remorse for his crime or
mercy towards his victim.” Id. at 26, 376 S.E.2d at 445. In
especially brutal murders where the victim is particularly
vulnerable, where the defendant has shown no remorse for his
actions, and where the jury found intent to kill, death sentences
have been returned. See, e.g., State v. Frye, 341 N.C. 470, 461
S.E.2d 644 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526
(1996); State v. Burr, 341 N.C. 263, 461 S.E.2d 602 (1995), cert.
denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996).
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 defendantreceived a fair capital sentencing proceeding, free of
prejudicial error. Accordingly, we leave the judgment of the
trial court undisturbed.
NO ERROR.
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