1. Jury--selection--capital sentencing--stake-out question
The trial court did not err during jury selection in a
capital sentencing proceeding by sustaining the prosecutor's
objection to defendant's question about whether a juror could
maintain the courage of her convictions if she did not think that
the State had proved its case and the other eleven jurors felt
that it had. Counsel may not pose hypothetical questions
designed to elicit in advance what a juror's decision will be
under a given state of facts; moreover, the question also
appeared to be an incorrect statement of the law in that jurors
have a duty to deliberate with the other jurors with a view to
reaching an agreement.
2. Sentencing--capital--mitigating circumstance--peremptory
instruction--jury instructed in accord with request
There was no error in a capital sentencing proceeding where
defendant contended that the court failed to peremptorily
instruct the jury on a mitigating circumstance, but the court
instructed the jury in accordance with defendant's request.
3. Sentencing--capital--mitigating circumstances--peremptory
instructions
The trial court did not err in a capital sentencing
proceeding by failing to peremptorily instruct the jury on the
mitigating circumstances of impaired capacity to appreciate the
criminality of the offense and the age of the defendant where
defendant's evidence supporting these two circumstances was
controverted.
4. Indigent Defendants--capital sentencing--right to two
attorneys--only one permitted to object
The trial court did not err during a capital sentencing
proceeding by permitting only one of defendant's attorneys to
object during the prosecutor's direct examination of a witness.
Defendant had two court-appointed attorneys as required by
N.C.G.S. § 7A-450(b1) and the court's ruling did not prevent them
from communicating, prompting, or consulting one another or so
drastically circumscribe the second attorney's role as to render
the appointment of two attorneys meaningless.
5. Constitutional Law--capital sentencing--right to two
attorneys--no constitutional requirement
There was no constitutional error in a capital sentencingproceeding where the trial court permitted only one defense
attorney to object during the prosecutor's direct examination of
a witness. Defendant did not raise the issue at trial and so did
not preserve it for review; even if he had, the right to the
appointment of additional attorneys in a capital trial is
statutory rather than constitutional.
6. Sentencing--capital--continuance--not requested
The trial court did not fail to exercise its discretion in
declining to continue a capital sentencing proceeding where
defendant challenged the admissibility of prior recorded
testimony of a witness then in Mexico and there was a discussion
by the prosecutor of recessing the hearing until the witness
could return, but defendant never made a motion for a
continuance or objected to the trial court's negative response to
the prosecutor's suggestion.
7. Criminal Law--prosecutor's argument--decision without
prejudice or sympathy
The trial court did not err by not intervening ex mero motu
in the prosecutor's argument in a capital sentencing proceeding
where defendant contended on appeal that the prosecutor falsely
represented to the jurors that they had promised to decide
defendant's case without sympathy, but the court had told the
jurors that they must be as free from bias, prejudice, or
sympathy as humanly possible and the prosecutor properly argued
that the jury should follow the law and render a verdict without
prejudice or sympathy for either side.
8. Criminal Law--prosecutor's argument--jurors answering to
higher power
The trial court did not err by not intervening ex mero motu
in a capital sentencing proceeding where the prosecutor argued
that the jurors would have to answer to someone higher than the
court if they failed to follow the law and decide the case
without sympathy or prejudice. The prosecutor did not contend
that the State's law enforcement powers were ordained by God.
9. Sentencing--capital--prosecutor's argument--course of
conduct
The trial court did not err by not intervening ex mero motu
in a capital sentencing proceeding where defendant contended on
appeal that the prosecutor improperly argued that defendant had
been convicted of assaulting the victim's nephew and that the
jury may have accepted without question the State's evidence
regarding the assault when it found the course of conduct
aggravating circumstance, but, in context, the prosecutor
informed the jury only that defendant had been convicted of
first-degree murder, first-degree kidnaping, and armed robbery,
and did not inform the jury that defendant had been convicted ofassaulting the nephew.
10. Sentencing--capital--defendant's argument--aggravating
circumstance--course of conduct--assault on victim's nephew
There was no prejudice in a capital sentencing proceeding
where defendant argued that the court violated his constitutional
rights by sustaining the prosecutor's objection to defendant's
attempt to inform the jury that defendant's related conviction
for assaulting the victim's nephew had been vacated, but
defendant did not object at trial, and, assuming that the court
abused its discretion by improperly limiting the scope of
defendant's argument, there was no prejudice because the court
specifically instructed the jurors that they could find the
course of conduct aggravating circumstance only if defendant
engaged in conduct which involved another crime of violence, and
the court permitted defense counsel to inform the jury that
defendant had never been convicted of an assault on the nephew.
11. Sentencing--capital--prosecutor's argument--number of
aggravating circumstances
The trial court did not err by failing to intervene ex mero
motu in a capital sentencing proceeding where defendant contended
that the prosecutor improperly argued that the jury should
sentence defendant to death based solely upon the number of
aggravating circumstances, but, in context, the prosecutor
properly argued that the four aggravating circumstances
outweighed (rather than outnumbered) the mitigating
circumstances.
12. Sentencing--capital--prosecutor's argument--existence of
aggravating circumstances
The trial court did not err by failing to intervene ex mero
motu in a capital sentencing proceeding where defendant contended
that the prosecutor argued that the aggravating circumstances had
already been determined to exist, but, in context, the argument
informed the jurors that they would have to determine beyond a
reasonable doubt whether any of the aggravating circumstances
existed.
13. Sentencing--capital--aggravating circumstance--especially
heinous, atrocious, or cruel murder--not overbroad
The aggravating circumstance that the murder was especially
heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9), is not
unconstitutionally vague and overbroad.
14. Sentencing--capital--aggravating circumstance--especially
heinous, atrocious or cruel murder--evidence sufficient
The evidence in a capital sentencing proceeding was
sufficient to support submission of the aggravating circumstancethat the murder was especially heinous, atrocious, or cruel where
defendant lured the victim to a rural location where he knew they
would be alone, he beat the victim to death with a shovel and
tire iron without provocation, inflicting several blunt-force
injuries to the victim's head, causing the victim's skin to split
and leaving jagged fractures underneath the victim's forehead,
beneath his left eye, across the bridge of his nose, and above
his ear, the force of the blows caused the shovel handle to break
in half, the victim's hands were tied behind his back and his
right foot was tied up to the shoulder area, and defendant later
said that he needed to return to the cornfield to see if the
victim was alive, indicating defendant's personal belief that the
victim might have lived through the beating.
15. Appeal and Error--preservation of issues--capital
sentencing--expert testimony--failure to object
Defendant did not object and did not preserve for review the
question of whether the trial court erred in a capital re-
sentencing proceeding by allowing an expert forensic pathologist
to give opinion testimony where he described the nature of the
victim's injuries even though he had not performed the autopsy.
16. Evidence--capital sentencing--leading questions--no
prejudice
There was no error in a capital sentencing proceeding where
defendant contended that the court erred by overruling his
objection to the prosecutor's improper cross-examination of a
pathologist by leading questions, but the precise nature of
defendant's first objection is not clear, the prosecutor restated
the question and the court sustained defendant's second
objection, defendant waived his right to raise the objection on
appeal by asking a similar question, and there was no prejudice
because the challenged examination occurred outside the presence
of the jury and defendant did not object to the pathologist's
testimony before the jury.
17. Indictment and Information--facially invalid indictment--
challenged at any time
While as a general rule a defendant waives an attack on an
indictment when the indictment is not challenged at trial, an
indictment alleged to be facially invalid may be challenged at
any time notwithstanding failure to contest its validity at trial
because it would deprive the trial court of jurisdiction.
18. Homicide--short-form murder indictment--constitutional
A short-form indictment for first-degree murder was valid
under Jones v. United States, 526 U.S. 227.
19. Sentencing--capital--death sentence proportionate
A death sentence was proportionate where the record
supported the aggravating circumstances found by the jury; there
was no indication that the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary
factor; and the case was more similar to cases in which the death
sentence was found proportionate than to those in which it was
found disproportionate. Defendant was convicted based in part on
premeditation and deliberation, the jury found four aggravating
circumstances which have not been found in any of the cases held
disproportionate, and three of the aggravating circumstances
found here are among those which have been held sufficient to
support a sentence of death standing alone.
Appeal as of right by defendant pursuant to N.C.G.S. §
7A-27(a) from a 21 May 1999 judgment imposing a sentence of death
entered by Doughton, J., at a resentencing proceeding held in
Superior Court, Wilkes County, upon defendant's conviction of
first-degree murder. Heard in the Supreme Court 18 October 2000.
Michael F. Easley, Attorney General, by Gail E. Weis,
Special Deputy Attorney General, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender, by
Charlesena Elliott Walker, Assistant Appellate
Defender, for defendant-appellant.
WAINWRIGHT, Justice.
On 9 October 1995, defendant was indicted for the first-
degree murder of Macedonio Hernandez Gervacio (the victim). On
18 March 1996, defendant was indicted for robbery with a
dangerous weapon, first-degree kidnapping, and assault with a
deadly weapon with intent to kill inflicting serious injury.
Defendant was tried capitally before a jury at the 15 July 1996
Criminal Session of Superior Court, Ashe County. The jury found
defendant guilty of all charges, specifically finding defendant
guilty of first-degree murder both on the basis of premeditation
and deliberation and under the felony murder rule. Following a
capital sentencing proceeding, the jury recommended a sentence ofdeath for the first-degree murder, and the trial court entered
judgment in accordance with that recommendation. The trial court
also sentenced defendant to a concurrent sentence of sixty-three
to eighty-five months' imprisonment for the kidnapping conviction
and to consecutive sentences of fifty-five to seventy-five
months' imprisonment for the robbery conviction and twenty-five
to thirty-nine months' imprisonment for the assault conviction.
On appeal, this Court found no error in the guilt phase of
defendant's trial with regard to his convictions for first-degree
murder, first-degree kidnapping, and robbery with a dangerous
weapon. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).
However, we arrested judgment as to defendant's conviction for
assault with a deadly weapon with intent to kill inflicting
serious injury based on a fatal variance in the indictment. Id.
at 424, 508 S.E.2d at 522. We also vacated defendant's sentence
of death and remanded for resentencing because, during the
capital sentencing proceeding, the prosecution was allowed to
impeach defendant with evidence of his post-Miranda silence. Id.
at 425-26, 508 S.E.2d at 523.
On 23 April 1999, the trial court entered an order
transferring venue from Ashe County, North Carolina, to Wilkes
County, North Carolina. Defendant's new capital sentencing
proceeding was held at the 17 May 1999 Special Criminal Session
of Superior Court, Wilkes County. On 21 May 1999, the jury once
again recommended a sentence of death, and the trial court
entered judgment in accordance with that recommendation.
Defendant appeals his sentence of death to this Court. The State's evidence at defendant's capital sentencing
proceeding tended to show as follows: At around 9:30 p.m. on
24 August 1995, defendant visited the victim and offered him
twenty-five dollars to help him move some things. The victim
told his nephew, Gabriel Gonzalez (Gabriel), that he would “be
right back,” then departed the trailer with defendant.
At approximately 11:00 p.m., Gabriel heard a knock on the
door and assumed that the victim had returned. When he opened
the door, however, he saw that defendant had returned alone.
Defendant offered Gabriel twenty dollars to help him move a
refrigerator. Gabriel accepted defendant's offer and departed
with defendant in defendant's pickup truck. Defendant took
Gabriel to a cornfield several miles away and parked his pickup
truck. Thereafter, defendant lured Gabriel outside of the
vehicle by telling him the pickup truck was stuck. As Gabriel
pushed the bumper of the pickup, defendant picked up an aluminum
bat and, after pretending to use the bat to lift the tire, struck
Gabriel on the head. Gabriel recovered, stood up, and ran to the
edge of a nearby river. Defendant ran after him briefly, then
returned to the pickup truck and departed the area. Gabriel then
ran into the cornfield and lay on the ground all night.
The next morning, Gabriel swam across the river and sought
assistance at area homes. Eventually, Gabriel received a ride
home. At approximately 7:00 p.m. on 25 August 1995, Gabriel,
through an interpreter, told the trailer park owner, David
Shatley, what had happened the previous night. Thereafter, law
enforcement officers were contacted, and Gabriel led a searchteam back to the cornfield to search for the victim. When the
search party arrived at the cornfield, Gabriel excitedly told the
same interpreter that defendant had brought him to that location
and assaulted him. After walking six to eight rows into the
cornfield, law enforcement officers found a baseball cap on the
ground and noticed several broken corn stalks. As they continued
their search, the officers noticed a plaid shirt near the edge of
the cornfield. After walking toward the shirt, the officers
discovered that the shirt was on the victim's body. The victim's
body was partially covered by corn stalks. The officers noted
that the victim had suffered severe head injuries. The victim's
right foot was tied up to his shoulder area with a yellow rope,
and the victim's hands were tied behind his back with a white
rope. Shatley identified the victim's body, and Gabriel
identified the baseball cap as the one the victim was wearing
when he left the trailer with defendant. The officers also
discovered a broken stick, similar to a shovel handle, at the
scene.
After the victim's body was found, the authorities
immediately began to search for defendant. Defendant was not
found at his residence. However, based on information obtained
at defendant's residence, a warrant was issued for his arrest.
Defendant was arrested on 27 August 1995 in a motel room in
Monroe, North Carolina. Defendant and his pickup truck were
brought back to Ashe County, where officers inventoried the
contents of defendant's pickup truck. Among items inventoried,
officers found a bag of clothes and a steel rod that appeared tohave blood and hair embedded in it. In addition, officers
recovered a motel registration form in the name of “Rick N.
Finley.” A handwriting expert later determined that the
registration form was written by defendant.
On 28 August 1995, Alan Varden, defendant's friend and
associate, gave a statement to Steve Cabe, a special agent with
the North Carolina State Bureau of Investigation. According to
Varden, defendant repeatedly suggested robbing the victim in the
weeks leading up to the murder and tried to obtain Varden's
assistance. Defendant told Varden that the victim carried a
large amount of cash that he was saving to purchase an
automobile. On one occasion, defendant showed Varden a shovel
handle that was in defendant's pickup truck and stated that he
would like to use it to “whack” the victim in the head. On
another occasion, defendant took Varden out to the cornfield
where the victim's body was later found and told Varden that the
cornfield, because it was desolate, would be a good place to rob
the victim and dispose of the body. Defendant also offered to
share the victim's money with Varden if he would help defendant
take care of Gabriel because Gabriel was much bigger than
defendant. Varden refused to help defendant.
At approximately 8:00 p.m. on the day of the murder,
defendant told Varden he was going to help Shatley move some
furniture out of a trailer and asked Varden to help. Varden
refused to go but did give defendant a piece of yellow plastic
rope to help tie the furniture down. At approximately 10:30
p.m., defendant returned home, where Varden and defendant's wife,Virginia Call (Jennie), were playing Nintendo. Defendant asked
Varden to help him move a dresser, and Varden and defendant
departed, each in his own pickup truck. On the way to Varden's
trailer, defendant and Varden stopped at a church and used the
rest room. While at the church, defendant handed Varden a one
hundred dollar bill, stating that it was for the camper shell he
had obtained from Varden. After leaving the church, defendant
and Varden stopped at a service station, and defendant gave
Varden a ten dollar bill and another one hundred dollar bill.
Upon arriving at Varden's trailer, defendant told Varden
that he had hit the victim over the head, had broken a shovel
handle, and had hit the victim with a tire iron. Defendant also
described how he had tied the victim's right leg and hands behind
the victim's back. Defendant told Varden he needed to go back
and check the victim's pulse and that he also needed to get
Gabriel. Once again, defendant sought Varden's assistance,
stating that Varden's pickup truck had a quieter muffler. After
Varden declined to help defendant, defendant put Varden's
baseball bat in his pickup truck and departed in the direction of
the victim's trailer. Varden returned to defendant's trailer.
Approximately thirty minutes later, defendant sped down his
driveway and ran into his trailer, repeatedly telling Varden and
Jennie that he had “f---ed up.” Defendant told Varden that he
had hit Gabriel with the bat but that Gabriel had gotten away.
Defendant then gathered some clothes and said he was “leaving the
country.” Defendant, Varden, and Jennie went to Varden's
trailer, where defendant showered and shaved off his mustache. Defendant also returned Varden's baseball bat to him. Varden
went to defendant's trailer to get defendant's wallet and pants,
as well as shoes for Jennie. When Varden returned to his
trailer, defendant told him he had written a note and left it on
Varden's coffee table. The note, which was recovered during the
investigation, read as follows: “I Eric Call hereby declare that
my wife Virginia Cox Call had absolutely no knowledge of what
might have taken place. Signed Eric L. Call.”
Sometime after midnight, defendant departed in his pickup
truck, and Jennie and Varden followed defendant in Varden's
pickup truck. After traveling some distance, defendant stopped
and said goodbye to Jennie, then departed the area. Varden and
Jennie returned home.
Prior to testifying at defendant's capital sentencing
proceeding, forensic pathologist Dr. Thomas A. Sporn reviewed the
autopsy report prepared by Dr. Robert Thompson, as well as the
autopsy photographs and a transcript of Dr. Thompson's prior
testimony. Dr. Sporn testified that the victim's body showed a
pattern of blunt-force injuries to the head and facial area that
could have been caused by a baseball bat, a shovel handle, or a
tire iron. Dr. Sporn noted the splitting of the victim's skin
and fracturing of the victim's skull at the forehead and beneath
the left eye, as well as splitting and tearing of the skin and
fracturing of the skull above the victim's ear. Dr. Sporn also
opined that the victim's injuries were caused by “clearly
several, more than two,” blows. Dr. Sporn's opinion with regard
to the number of blows the victim received was based, in part, onDr. Thompson's assessment that the victim had suffered at least
eleven blows to the head.
[1]In his first assignment of error, defendant contends the
trial court erred by sustaining the prosecutor's objection to a
question posed by defendant during jury selection. We disagree.
“The primary goal of the jury selection process is to ensure
selection of a jury comprised only of persons who will render a
fair and impartial verdict.” State v. Locklear, 331 N.C. 239,
247, 415 S.E.2d 726, 731 (1992), quoted in State v. Larry, 345
N.C. 497, 509, 481 S.E.2d 907, 914, cert. denied, 522 U.S. 917,
139 L. Ed. 2d 234 (1997). “'Regulation of the manner and the
extent of inquiries on voir dire rests largely in the trial
court's discretion.'” State v. Elliott, 344 N.C. 242, 261, 475
S.E.2d 202, 209 (1996) (quoting State v. Green, 336 N.C. 142,
164, 443 S.E.2d 14, 27, cert. denied, 513 U.S. 1046, 130 L. Ed.
2d 547 (1994)), cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312
(1997). “In order for the defendant to show reversible error, he
must show that the trial court abused its discretion and that he
was prejudiced thereby.” State v. Jones, 339 N.C. 114, 134, 451
S.E.2d 826, 835 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed.
2d 873 (1995).
In the present case, the trial court sustained the
prosecutor's objection to the form of the following question
posed by defense counsel:
Ms. Mathis, I'm just going to pick on you for one
second. If, if you personally do not think the State
has proved something beyond a reasonable doubt and the
other eleven have [sic], could you maintain the courage
of your convictions and say “They've not proved that”?
This Court has held that “'[c]ounsel may not pose
hypothetical questions designed to elicit in advance what the
juror's decision will be under a certain state of the evidence or
upon a given state of facts.'” Elliott, 344 N.C. at 262, 475
S.E.2d at 209 (quoting State v. Vinson, 287 N.C. 326, 336, 215
S.E.2d 60, 68 (1975), death sentence vacated, 428 U.S. 902, 49 L.
Ed. 2d 1206 (1976)). “'[S]uch questions tend to “stake out” the
juror and cause him to pledge himself to a future course of
action.'” State v. Richmond, 347 N.C. 412, 425, 495 S.E.2d 677,
683 (quoting Vinson, 287 N.C. at 336, 215 S.E.2d at 68), cert.
denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998). Moreover, we have
held that “[a] question which is designed to determine how well a
prospective juror would stand up to other jurors in the event of
a split decision amounts to an impermissible 'stake out.'”
Elliott, 344 N.C. at 262, 475 S.E.2d at 209; accord State v.
Bracey, 303 N.C. 112, 118-19, 277 S.E.2d 390, 395 (1981).
As in Elliott, the question excluded by the trial court in
the present case was improper as it “seems to be designed to
determine how well prospective jurors would stand up to other
jurors in the event of a split decision.” 344 N.C. at 262, 475
S.E.2d at 209. The challenged question also appears to be an
“'incorrect or inadequate statement[] of the law.'” Id. (quoting
Vinson, 287 N.C. at 336, 215 S.E.2d at 68). Although jurors are
required to make individual decisions about a case, “each juror
also has a duty to deliberate with other jurors with a view to
reaching an agreement.” Id.; see also N.C.G.S. § 15A-1235(b)
(1999). Here, the question excluded by the trial court “may havehad the tendency to suggest that jurors should make decisions
without considering the opinions of other jurors.” Elliott, 344
N.C. at 262-63, 475 S.E.2d at 209. For these reasons, the trial
court did not abuse its discretion by sustaining the prosecutor's
objection to the form of defendant's question. Moreover,
assuming error arguendo, defendant has failed to demonstrate that
he was prejudiced by the trial court's ruling. See Jones, 339
N.C. at 134, 451 S.E.2d at 835. This assignment of error is
overruled.
By assignment of error, defendant contends the trial court
erred in refusing to peremptorily instruct the jury on the
following three statutory mitigating circumstances: (1) the
murder was committed while the defendant was under the influence
of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2)
(1999); (2) the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was impaired, N.C.G.S. § 15A-2000(f)(6); and
(3) the age of the defendant at the time of the crime, N.C.G.S. §
15A-2000(f)(7). None of the jurors found any of these requested
statutory mitigating circumstances to exist.
“A defendant is entitled, upon request, to a peremptory
instruction on a statutory mitigating circumstance when the
evidence supporting the circumstance is uncontroverted.” State
v. Roseboro, 351 N.C. 536, 547, 528 S.E.2d 1, 8, cert. denied,
___ U.S. ___, 148 L. Ed. 2d 498 (2000); accord State v. White,
349 N.C. 535, 568, 508 S.E.2d 253, 274 (1998), cert. denied, 527
U.S. 1026, 144 L. Ed. 2d 779 (1999). However, “'[i]f theevidence supporting the circumstance is controverted or is not
manifestly credible, the trial court should not give the
peremptory instruction.'” State v. Hedgepeth, 350 N.C. 776, 787,
517 S.E.2d 605, 612 (1999) (quoting State v. Bishop, 343 N.C.
518, 557, 472 S.E.2d 842, 863 (1996), cert. denied, 519 U.S.
1097, 136 L. Ed. 2d 723 (1997)), cert. denied, 529 U.S. 1006, 146
L. Ed. 2d 223 (2000).
[2]At the outset, we note defendant's assertion that the
trial court failed to peremptorily instruct the jury on the
(f)(2) mitigating circumstance is not supported by the record.
To the contrary, the record reveals the trial court informed the
prosecution and defense counsel that it would instruct the jury
peremptorily on the (f)(2) mitigating circumstance. During its
charge to the jury, the trial court did in fact instruct the jury
in accordance with defendant's request. Therefore, defendant's
argument regarding the (f)(2) mitigating circumstance is
rejected.
[3]With regard to the trial court's refusal to peremptorily
instruct the jury on the (f)(6) and (f)(7) mitigating
circumstances, the record reveals defendant's evidence supporting
these circumstances was in fact controverted. Dr. Ron Hood, a
psychologist, evaluated defendant one month before the sentencing
proceeding. During the sentencing proceeding, Dr. Hood testified
that defendant's capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
impaired on the date of the murder due to personality and
substance-abuse disorders. Dr. Hood also testified thatdefendant's IQ was “within a normal range.” On cross-
examination, Dr. Hood testified there was no evidence that
defendant suffered from organic brain damage or mental
retardation. Regarding defendant's substance-abuse impairment,
Dr. Hood testified that he relied solely on defendant's
statements to him about marijuana usage and that he had no
independent medical evidence. In addition, Dr. Hood stated that
he did not question defendant about his drug usage on the day of
the murder.
The State's evidence tended to show that defendant carefully
planned to kidnap, rob, and murder the victim, and that defendant
carried out his plan in a calm and calculated manner. Defendant
discussed his plan on several occasions with his friend, Varden,
and repeatedly tried to obtain Varden's assistance. On one
occasion, defendant showed Varden a shovel handle and stated that
he would like to use it to “whack” the victim in the head. On
another occasion, defendant took Varden to the cornfield where
the victim's body was ultimately found and told Varden that the
cornfield would be a good place to rob the victim and dispose of
the body. On the night of the murder, defendant left the
victim's body in the cornfield, then returned home and described
to Varden how he had beaten and tied up the victim. He then
explained to Varden that he needed to get Gabriel because
defendant knew that Gabriel would be a witness to the fact that
the victim had left home with defendant earlier that night.
The record therefore reveals conflicting evidence regarding
whether defendant's ability to appreciate the criminality of hisconduct or to conform his conduct to the requirements of the law
was impaired. “'[A] peremptory instruction is inappropriate when
the evidence surrounding that issue is conflicting.'” Roseboro,
351 N.C. at 548, 528 S.E.2d at 9 (quoting State v. Noland, 312
N.C. 1, 20, 320 S.E.2d 642, 654 (1984), cert. denied, 469 U.S.
1230, 84 L. Ed. 2d 369 (1985)) (alteration in original). Thus,
the trial court did not err by denying defendant's motion for a
peremptory instruction on the (f)(6) mitigating circumstance.
We likewise reject defendant's argument that the trial court
erred by refusing to peremptorily instruct the jury on the
statutory mitigating circumstance of the age of defendant at the
time of the crime. N.C.G.S. § 15A-2000(f)(7). This Court has
characterized “age” as a “flexible and relative concept.” State
v. Johnson, 317 N.C. 343, 393, 346 S.E.2d 596, 624 (1986); accord
State v. Spruill, 338 N.C. 612, 660, 452 S.E.2d 279, 305 (1994),
cert. denied, 516 U.S. 834, 133 L. Ed. 2d 63 (1995). We have
also held that chronological age is not the determinative factor
with regard to submission of the (f)(7) mitigating circumstance.
State v. Peterson, 350 N.C. 518, 528, 516 S.E.2d 131, 138 (1999),
cert. denied, 528 U.S. 1164, 145 L. Ed. 2d 1087 (2000). Rather,
the trial court must consider other varying conditions and
circumstances. Id.
In the present case, defendant was twenty-six when he
murdered the victim. During his capital sentencing proceeding,
however, Dr. Hood testified that, based on his psychological
evaluation, defendant's emotional age “could have been around the
eighteen to nineteen year old range” at the time of the murder. Although evidence demonstrating emotional immaturity is relevant,
such evidence “is not viewed in isolation, particularly where
other evidence shows 'more mature qualities and
characteristics.'” Spruill, 338 N.C. at 660, 452 S.E.2d at 305
(quoting Johnson, 317 N.C. at 393, 346 S.E.2d at 624).
The evidence presented in this case showed that defendant's
IQ is within the normal range, that he had significant work
experience, that defendant was a good employee and a good
mechanic, that defendant completed his GED, and that defendant
had attended Anson Tech to become a mechanic and had received
good grades. The foregoing evidence controverted Dr. Hood's
testimony regarding defendant's emotional age or immaturity.
Therefore, the trial court did not err by denying defendant's
request for a peremptory instruction on the (f)(7) mitigating
circumstance. This assignment of error is overruled.
[4]By assignment of error, defendant contends the trial
court erred by permitting only one of his attorneys to object
during the prosecutor's direct examination of a witness. As the
prosecutor questioned Shatley, both defense attorneys objected at
different times. After the second attorney objected to a
question directed to the same witness, the trial court overruled
the objection, then stated, “whoever is going to do each witness,
one at a time. You understand?” Shortly thereafter, the jury
was released for lunch break, and the following exchange occurred
out of the presence of the jury:
THE COURT: I only ask whoever is going to do the
examination of each witness that one of you do it at a
time.
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: It's hard for me to keep up with
everything.
Defendant argues that the trial court's ruling in this
regard impermissibly infringed on his statutory right to the
assistance of two attorneys in a capital trial and his
constitutional right to the assistance of counsel. We disagree.
The governing statute provides in pertinent part:
An indigent person indicted for murder may not be tried
where the State is seeking the death penalty without an
assistant counsel being appointed in a timely manner.
If the indigent person is represented by the public
defender's office, the requirement of an assistant
counsel may be satisfied by the assignment to the case
of an additional attorney from the public defender's
staff.
N.C.G.S. § 7A-450(b1) (1999).
In State v. Frye, 341 N.C. 470, 461 S.E.2d 664 (1995), cert.
denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996), this Court held
that the trial court did not violate the defendant's statutory
right to two attorneys by not allowing both attorneys to object
during voir dire. We reasoned that because the trial court “did
not deny defendant the assistance of a second attorney or so
drastically circumscribe the second attorney's role as to render
the appointment of two attorneys meaningless,” section 7A-450(b1)
was not violated. Id. at 493, 461 S.E.2d at 675.
In the present case, as in Frye, we conclude the trial
court's ruling did not violate defendant's statutory entitlement
to two attorneys. Here, defendant had two court-appointed
attorneys as required by section 7A-450(b1). The trial court
ruled merely that only one of defendant's attorneys could makeobjections during the testimony of each witness. The trial
court's ruling did not “prohibit[] or prevent[] defendant's
attorneys from communicating, prompting, or consulting one
another.” State v. Fullwood, 343 N.C. 725, 733, 472 S.E.2d 883,
887 (1996), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339
(1997); see also Frye, 341 N.C. at 493, 461 S.E.2d at 675. In
short, the trial court “did not deny defendant the assistance of
a second attorney or so drastically circumscribe the second
attorney's role as to render the appointment of two attorneys
meaningless.” Frye, 341 N.C. at 493, 461 S.E.2d at 675.
Therefore, defendant's argument is without merit.
[5]Defendant also contends the trial court's ruling in this
regard violated his right to the assistance of counsel as
guaranteed by the Sixth Amendment to the United States
Constitution and Article I, Section 23 of the North Carolina
Constitution. Because defendant did not raise this
constitutional issue at trial, he has failed to preserve it for
our review. State v. Gibbs, 335 N.C. 1, 42, 436 S.E.2d 321, 344
(1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994).
Even if defendant had properly preserved this constitutional
issue for appeal, his argument would fail because “'[a]n indigent
defendant's right to the appointment of additional counsel in
capital cases is statutory, not constitutional.'” Frye, 341 N.C.
at 493, 461 S.E.2d at 675 (quoting State v. Locklear, 322 N.C.
349, 357, 368 S.E.2d 377, 382 (1988)) (alteration in original).
Accordingly, this assignment of error is overruled.
[6]By assignment of error, defendant contends the trialcourt committed reversible error by failing to exercise its
discretion when it declined to continue defendant's capital
sentencing proceeding. We disagree.
This Court has held that “[w]hen a motion addressed to the
discretion of the trial court is denied upon the ground that the
trial court has no power to grant the motion in its discretion,
the ruling is reviewable.” State v. Johnson, 346 N.C. 119, 124,
484 S.E.2d 372, 375 (1997). A motion for a continuance is
ordinarily addressed to the sound discretion of the trial court,
and the ruling will not be disturbed absent a showing of abuse of
discretion. State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751,
755 (1997); State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335,
341 (1982). When a motion to continue raises a constitutional
issue, however, the trial court's ruling thereon involves a
question of law that is fully reviewable on appeal by examination
of the particular circumstances presented in the record. State
v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982); State
v. Jones, 342 N.C. 523, 530-31, 467 S.E.2d 12, 17 (1996). Even
when the motion raises a constitutional issue, denial of the
motion is grounds for a new trial only upon a showing that “the
denial was erroneous and also that [defendant's] case was
prejudiced as a result of the error.” Branch, 306 N.C. at 104,
291 S.E.2d at 656.
In the present case, we need not address whether the trial
court failed to exercise its discretion because the record
reveals that defendant never made a motion for a continuance.
Prior to the prosecution's presentation of evidence at trial,defendant made a motion for recordation of any testimony given in
a foreign language. In response, the prosecutor informed the
trial court that there would be no Spanish-speaking witnesses.
The prosecutor explained that Gabriel had failed to obtain his
temporary visa and board the airplane out of Mexico. The
prosecutor also told the trial court that he intended to read
Gabriel's prior recorded testimony into the record and provided
the trial court with a copy of the transcript. Defendant did not
make a motion for a continuance at that time. After the
prosecutor presented the testimony of two witnesses, he announced
his intention to read Gabriel's prior recorded testimony into
evidence. Although defense counsel challenged the admissibility
of the prior recorded testimony, the record reveals that defense
counsel did not seek a continuance. After defense counsel
concluded their argument against the admission of the prior
recorded testimony, the trial court asked the prosecutor if he
wanted to respond. The prosecutor responded as follows:
[PROSECUTOR]: Well, Yes, Your Honor. I mean, it
sounds like Mr. Wiley really wants the, Mr. Hernandez
(sic) . . . Gonzalez here, and the State's done
everything we could to get him here. We'd like to have
the victim's father here to tell the jury about his
loss, so maybe a proper, a proper solution would be to
recess this hearing until June 1st criminal term of
court and that [sic] we can have everybody here and let
the jury hear all about the actual events. But, we've
made a very good faith attempt to get them here. But,
if you feel like it's prejudicing their client in some
way, we'd be happy to recess this matter, if the Court
pleases, until June 1st criminal session of court and
pick it back up then where we can have them here.
Defendant did not request a continuance at that time.
Thereafter, the following exchange occurred:
THE COURT: We have a jury sitting in that juryroom right back there. It's not going to [b
e] possible
to recess this case until June 1st.
[PROSECUTOR]: All right.
[DEFENSE COUNSEL]: Nothing further.
(Emphasis added.)
The record therefore demonstrates that defendant neither
requested a continuance nor objected to the trial court's
response to the prosecutor's suggested course of action. Thus,
the trial court was never called upon by defendant to exercise
its discretion, and defendant has failed to preserve this issue
for appellate review. See N.C. R. App. P. 10(b)(1); State v.
Smith, 352 N.C. 531, 557-58, 532 S.E.2d 773, 790 (2000), cert.
denied, ___ U.S. ___, ___ L. Ed. 2d ___, 69 U.S.L.W. 3629 (2001).
Accordingly, this assignment of error is rejected.
By assignments of error, defendant contends the trial court
erred by failing to intervene ex mero motu to prevent improper
argument by the prosecutor during closing arguments. We
disagree.
When, as here, a defendant fails to object during closing
argument, the standard of review is whether the argument was so
grossly improper that the trial court erred in failing to
intervene ex mero motu. State v. Trull, 349 N.C. 428, 451, 509
S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d
80 (1999); State v. Sexton, 336 N.C. 321, 348-49, 444 S.E.2d 879,
895, cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994).
“'[O]nly an extreme impropriety on the part of the prosecutor
will compel this Court to hold that the trial judge abused his
discretion in not recognizing and correcting ex mero motu anargument that defense counsel apparently did not believe was
prejudicial when originally spoken.'” State v. Davis, 353 N.C.
1, 31, 539 S.E.2d 243, 263 (2000) (quoting State v. Richardson,
342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S.
890, 136 L. Ed. 2d 160 (1996)).
We have recognized that “'[t]rial counsel is allowed wide
latitude in argument to the jury and may argue all of the
evidence which has been presented as well as reasonable
inferences which arise therefrom.'” State v. Hyde, 352 N.C. 37,
56, 530 S.E.2d 281, 294 (2000) (quoting State v. Guevara, 349
N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S.
1133, 143 L. Ed. 2d 1013 (1999)), cert. denied, ___ U.S. ___, 148
L. Ed. 2d 775 (2001). Moreover, “the prosecutor in a capital
case has a duty to strenuously pursue the goal of persuading the
jury that the facts of the particular case at hand warrant
imposition of the death penalty.” Green, 336 N.C. at 188, 443
S.E.2d at 41. The trial court's exercise of discretion over the
latitude of counsel's argument will not be disturbed absent any
gross impropriety in the argument that would likely influence the
jury's verdict. State v. McNeil, 350 N.C. 657, 685, 518 S.E.2d
486, 503 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 321
(2000). We also emphasize that “'statements contained in closing
arguments to the jury are not to be placed in isolation or taken
out of context on appeal. Instead, on appeal we must give
consideration to the context in which the remarks were made and
the overall factual circumstances to which they referred.'”
Guevara, 349 N.C. at 257, 506 S.E.2d at 721 (quoting Green, 336N.C. at 188, 443 S.E.2d at 41).
[7]Defendant first argues the prosecutor falsely
represented to the jurors that they had promised him they would
decide defendant's case without sympathy. The prosecutor argued,
in context, as follows:
One more thing I want to point out. Don't forget
your duty as a juror in this case. Your duty is,
ladies and gentlemen of the jury, to set a punishment.
We're here to punish [defendant] for the crimes he's
committed. We're not here to reward anybody. We're
not here to avenge anybody's debt. We're here to
select a proper punishment, and there's only two
options, and you all know that.
But, don't forget, ladies and gentlemen, because
there's a lot of emotion came up in this trial. There
was a lot of emotion. And, you could let that emotion
override your duty as a juror, because your duty is to
apply the facts that you heard in this case to the law
that the Judge is going to give you. And, if the facts
fit the law and show that you ought to recommend the
death penalty, you cannot let your emotions override
your duty.
Yes, it's hard. There's nothing easy about this
case for anybody involved. There's nothing easy in
anybody's case when it comes down to saying whether a
man ought to live or die. Nobody said it was easy.
But, you have to go by the law. Not only that, you
gave your oath to this Court that you would hear this
case fairly, impartially, you would follow the law even
if you disregarded it, and you would decide this case,
this verdict without sympathy and without prejudice for
anyone.
And, if you didn't do that, and if you don't do
that, there's nothing we can do about it. But, one day
you'll have to answer to somebody higher than this
court.
(Emphasis added.)
Contrary to defendant's contention, the above-emphasized
argument reveals that the prosecutor did not claim that the
jurors had promised him they would decide defendant's case
without sympathy. Rather, the prosecutor stated that the jurorshad promised to decide the case without sympathy in their oath to
the trial court. The record reveals that the trial court
required the jurors to give an oath to decide the case based on
the evidence presented, and without prejudice or partiality. In
addition, the trial court told the jurors that they “must be as
free as humanly possible from bias, prejudice, or sympathy, and
must not be influenced by preconceived ideas either as to the
facts or as to the law.”
Viewed in context, the prosecutor properly argued to the
jurors that they should follow the law and render a verdict
without prejudice or sympathy for either side. The prosecutor
did not, as defendant suggests, argue that the jurors should
reject all mitigating circumstances. Moreover, the trial court
properly instructed the jury how mitigating circumstances should
be considered. The trial court also instructed the jury on the
catchall mitigating circumstance, which permits jurors to
consider anything in mitigation. See State v. Conner, 345 N.C.
319, 332-33, 480 S.E.2d 626, 632, cert. denied, 522 U.S. 876, 139
L. Ed. 2d 134 (1997). Finally, we have held that prosecutors
“may properly argue to the sentencing jury that its decision
should be based not on sympathy, mercy, or whether it wants to
kill the defendant, but on the law.” Frye, 341 N.C. at 506, 461
S.E.2d at 683; accord State v. Rouse, 339 N.C. 59, 93, 451 S.E.2d
543, 561-62 (1994), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60
(1995). Accordingly, the trial court did not err in failing to
intervene ex mero motu.
[8]Defendant next argues the trial court should haveintervened ex mero motu when, as noted above, the prose
cutor
argued that the jurors “would have to answer to somebody higher
than this court” if they failed to follow the law and decide this
case “without sympathy and without prejudice for anyone.”
This Court has disapproved “'arguments to the effect that
the law enforcement powers of the State come from God and that to
resist those powers is to resist God.'” State v. Cummings, 352
N.C. 600, 628, 536 S.E.2d 36, 56 (2000) (quoting State v. Geddie,
345 N.C. 73, 100, 478 S.E.2d 146, 160 (1996), cert. denied, 522
U.S. 825, 139 L. Ed. 2d 43 (1997)). We have also repeatedly
cautioned counsel “'that they should base their jury arguments
solely upon the secular law and the facts.'” Davis, 353 N.C. at
28, 539 S.E.2d at 262 (quoting State v. Williams, 350 N.C. 1, 27,
510 S.E.2d 626, 643, cert. denied, 528 U.S. 880, 145 L. Ed. 2d
162 (1999)). As we have previously recognized, “[j]ury arguments
based on any of the religions of the world inevitably pose a
danger of distracting the jury from its sole and exclusive duty
of applying secular law and unnecessarily risk reversal of
otherwise error-free trials.” Williams, 350 N.C. at 27, 510
S.E.2d at 643.
In the instant case, the prosecutor did not contend that the
State's law enforcement powers were ordained by God. See Geddie,
345 N.C. at 100, 478 S.E.2d at 160. We also note that, as in
Williams, the prosecutor in the present case told the jury that
it should make its sentencing decision based on the law and the
evidence presented in this case. Williams, 350 N.C. at 26-27,
510 S.E.2d at 643; accord Davis, 353 N.C. at 29, 539 S.E.2d at262. Accordingly, the prosecutor's argument was not so grossly
improper as to warrant ex mero motu intervention.
[9]Defendant next argues the prosecutor improperly argued
that the jurors should accept without question that defendant
assaulted Gabriel because defendant had been previously convicted
of that offense. Defendant contends that, based on this improper
argument, the jury may have accepted without question the State's
evidence regarding defendant's assault of Gabriel when it found
the (e)(11) aggravating circumstance, that “the murder for which
the defendant stands convicted was part of a course of conduct in
which the defendant engaged and which included the commission by
the defendant of other crimes of violence against another person
or persons.” N.C.G.S. § 15A-2000(e)(11). The prosecutor argued
in context as follows:
[T]his man who had no previous criminal history, this
man who had a character of peacefulness and respect
towards others, this man who had been a kind and
considerate person[] to individuals with disabilities,
beat the brains out of an innocent victim, and was
convicted, ladies and gentlemen, of first degree
murder, both on the basis of the felony murder rule and
premeditation and deliberation.
This man . . . who was a courteous, respectful and
obedient student, this man who carried his cousin on
his back for a mile and a half to get him help, was
convicted, ladies and gentlemen of the jury, of
tricking an innocent victim into a desolate area so
that he could rob and kill him. He was convicted of
first degree kidnapping.
This[] man, ladies and gentlemen of the jury, who
shows mechanical aptitude and work skills and a
willingness to use these skills to benefit others, this
man, who had a reputation for being industrious,
hardworking, patient among his co-workers, this man who
showed initiative by getting his GED and attending
community college, instead of using those skills, took
a man out to a desolate area where he could rob him.
He took a man out there and then took money from eithera dead person or a person that was dying, and he was
convicted of armed robbery.
Ladies and gentlemen of the jury, when you go back
to your deliberations, you consider him to be guilty of
these charges. You consider that he did everything
that the State's evidence shows in the hearing in this
case. And, don't forge[t] that if you don't remember
anything else.
Now, that matter has been decided for you. And,
it really doesn't matter what you think about the
facts. It doesn't matter what Mr. and Mrs. Call think.
It doesn't matter what [defense counsel] and myself
think about the facts. Those facts have been decided.
It's not for you to determine facts about August the
24th, of 1995.
. . . .
. . . Your duty is, ladies and gentlemen of the
jury, to set a punishment.
After reviewing the challenged argument in context, we
conclude the prosecutor's argument was not improper. Contrary to
defendant's argument, the prosecutor never informed the jury that
defendant had previously been convicted of assaulting Gabriel.
Rather, the prosecutor informed the jury only that defendant had
been previously convicted of first-degree murder, first-degree
kidnapping, and armed robbery. Therefore, the trial court did
not err by failing to intervene ex mero motu.
[10]We likewise reject defendant's related argument that
the trial court violated his constitutional rights by sustaining
the prosecutor's objection to defendant's attempt to inform the
jury that defendant's conviction for assaulting Gabriel had been
vacated by this Court. During defendant's closing argument, the
following exchange occurred:
[DEFENSE COUNSEL]: . . . One other thing as to
this last aggravating circumstance, that the State did
not tell you is that, that charge, that the charge ofconviction for assault against this individual. We
never saw Gabriel Gonzalez. It was in fact vacated by
. . . .
[PROSECUTOR LYLE]: . . . OBJECTION.
[PROSECUTOR GREEN]: . . . OBJECTION. I'd like to
be heard.
At the outset, we note defendant made no constitutional
argument at trial in this regard. Constitutional questions not
raised and passed upon at trial will not be considered on appeal.
Gibbs, 335 N.C. at 42, 436 S.E.2d at 344. Assuming, without
deciding, that the trial court abused its discretion by
improperly limiting the scope of defendant's argument, we
nonetheless conclude that defendant suffered no prejudice. The
trial court specifically instructed the jurors that they could
find the existence of the (e)(11) aggravating circumstance only
if they found
from the evidence beyond a reasonable doubt that in
addition to killing the victim, Defendant . . . engaged
[in] conduct which involved the commission of another
crime of violence against another person . . . .
(Emphasis added).
Moreover, the record reveals that after sustaining the
prosecutor's objection to defendant's proposed argument, the
trial court permitted defense counsel to inform the jury that
“[defendant] has never been convicted of an assault on Gabriel
Gonzales.” Accordingly, this argument is rejected.
[11]Defendant next contends the prosecutor improperly
argued that the jury should sentence defendant to death based
solely upon the number of aggravating circumstances submitted to
it. Defendant contends the prosecutor's argument negated theneed for the jury to weigh the aggravating circumstances against
the mitigating circumstances. The record reveals that after
arguing the evidence supporting aggravating circumstances, the
prosecutor argued as follows:
Are all four of these, when you only need one to
call for the death penalty, are four of them enough?
Sure. Absolutely.
Is it true what we heard about the Defendant's
past? See, because that's what they call mitigating
circumstances. That's what the lawyers are going to
want you to consider as mitigating the crime down so as
not to recommend the death penalty.
Are they true, what we heard about his past?
Sure. We don't contest anything about how he grew up
and what the family said. That's all true.
But, did that outweigh what he did on August the
24th of 1995? Do those mitigating circumstances about
his life, which I told you that I was talking about
here at first [sic]. Those are all mitigating factors.
I read them right off the sheet you'll get. Do those
outweigh these four? No.
And, if they don't outweigh these four, you can't
recommend life.
Read in context, the prosecutor did not suggest to the jury
that it should make its sentencing decision “by means of
mathematical calculations.” Rather, the prosecutor properly
argued to the jury that the four aggravating circumstances
outweighed, rather than outnumbered, the mitigating
circumstances. Moreover, the record reveals that the trial court
instructed the jurors as follows:
In so doing, you're the sole judges of the weight
to be given to any individual circumstance which you
find[,] whether aggravating or mitigating. You should
not merely add up the number of aggravating
circumstances and mitigating circumstances. Rather,
you must decide from all the evidence what value to
give to each circumstance and then weigh the
aggravating circumstances so valued against themitigating circumstances so valued, and finally
determine whether the mitigating circumstances are
insufficient to outweigh the aggravating circumstances.
The trial court's instruction properly explained to the jury
the manner in which it should consider the aggravating and
mitigating circumstances. Accordingly, the trial court did not
err in failing to intervene ex mero motu.
[12]Finally, defendant contends the prosecutor improperly
argued that four of the five aggravating circumstances submitted
to the jury had already been determined to exist. The prosecutor
argued as follows:
The law says, in North Carolina, that you have to
do certain specific things in the course of a murder
before you can even be subjected to the death penalty.
And, there's only eleven of them.
They're set out in the law books as to what you
can do. If you didn't do any of those things in a
murder case, then you can't get the death penalty.
In this case, ladies and gentlemen of the jury,
out of those eleven, the Judge is going to submit four
to you. They're going to be on the first page of the
sheet that you get that's called Issue I. What it says
is: Do you unanimously find from the evidence beyond a
reasonable doubt the existence of one or more of the
following aggravating circumstances? That's what
they're called.
At the outset, we note that, contrary to defendant's
argument, only four aggravating circumstances were submitted to
the jury. Moreover, we fail to see how the challenged argument
could have left jurors with the impression that the four
submitted aggravating circumstances had already been determined
to exist. When read in context, the prosecutor's argument
informed the jurors that they would have to determine beyond a
reasonable doubt whether any of the submitted aggravatingcircumstances existed. This argument is without merit.
These assignments of error are overruled.
[13]By assignments of error, defendant contends the trial
court erred by submitting to the jury the aggravating
circumstance that the victim's murder was especially heinous,
atrocious, or cruel. N.C.G.S. § 15A-2000(e)(9). Defendant
argues that the (e)(9) aggravating circumstance is
unconstitutionally vague and overbroad and that, based on the
evidence presented during the sentencing proceeding, its
submission was error. We disagree.
With regard to defendant's first contention, we have
repeatedly rejected the argument that the (e)(9) aggravating
circumstance is unconstitutionally vague and overbroad, State v.
Fleming, 350 N.C. 109, 119, 512 S.E.2d 720, 728, cert. denied,
528 U.S. 941, 145 L. Ed. 2d 274 (1999); State v. Lee, 335 N.C.
244, 285, 439 S.E.2d 547, 568-69, cert. denied, 513 U.S. 891, 130
L. Ed. 2d 162 (1994), and we decline defendant's invitation to
reconsider our prior holdings.
[14]Further, “[i]n 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 all evidence admitted that is
favorable to the State is to be considered.'” McNeil, 350 N.C.
at 693, 518 S.E.2d at 508 (quoting State v. Robinson, 342 N.C.
74, 86, 463 S.E.2d 218, 225 (1995), cert. denied, 517 U.S. 1197,
134 L. Ed. 2d 793 (1996)) (alteration in original). Finally,
determination of whether submission of the (e)(9) aggravating
circumstance is warranted depends on the particular facts of each
case. State v. Brewington, 352 N.C. 489, 525, 532 S.E.2d 496,
517 (2000), cert. denied, ___ U.S. ___, 148 L. Ed. 2d 992 (2001);
McNeil, 350 N.C. at 693-94, 518 S.E.2d at 508.
We have previously held the following types of murders to
warrant submission of the (e)(9) aggravating circumstance:
One type includes killings physically agonizing or
otherwise dehumanizing to the victim. State v. Lloyd,
321 N.C. 301, 319, 364 S.E.2d 316, 328 (1988). A
second type includes killings less violent but
“conscienceless, pitiless, or unnecessarily torturous
to the victim,” State v. Brown, 315 N.C. 40, 65, 337
S.E.2d 808, 826-27 (1985)[, cert. denied, 476 U.S.
1164, 90 L. Ed. 2d 733 (1986), overruled on other
grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d
373 (1988)], including those which leave the victim in
her “last moments aware of but helpless to prevent
impending death,” State v. Hamlet, 312 N.C. 162, 175,
321 S.E.2d 837, 846 (1984). A third type exists where
“the killing demonstrates an unusual depravity of mind
on the part of the defendant beyond that normally
present in first-degree murder.” Brown, 315 N.C. at
65, 337 S.E.2d at 827.
Gibbs, 335 N.C. at 61-62, 436 S.E.2d at 356.
In the present case, the State's evidence tended to show
that defendant lured the victim to a rural location where he knew
they would be alone. See Lloyd, 321 N.C. at 319, 364 S.E.2d at
328 (defendant killed victim at a time he knew victim would bealone). Without provocation, defendant then beat the victim to
death with a shovel handle and a tire iron, supporting an
inference that the murder was conscienceless and pitiless. See
State v. Ingle, 336 N.C. 617, 641-42, 445 S.E.2d 880, 893 (1994),
cert. denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995). Defendant
inflicted several blunt-force injuries to the victim's head,
causing the victim's skin to split and leaving jagged fractures
of bone underneath the victim's forehead, beneath his left eye,
and across the bridge of his nose. Defendant also caused the
skin to split and the bone to fracture above the victim's ear.
The force of the blows inflicted upon the victim by the defendant
caused the shovel handle to break in half. The record also
reveals that defendant tied the victim's hands behind his back
and tied his right foot up to his shoulder area. This evidence
supports an inference that the victim was left in his “'last
moments aware of but helpless to prevent impending death.'”
Gibbs, 335 N.C. at 61-62, 436 S.E.2d at 356 (quoting Hamlet, 312
N.C. at 175, 321 S.E.2d at 846). This inference is buttressed by
evidence that, upon returning to his residence, defendant told
Varden he needed to return to the cornfield to see if the victim
was alive because he had not checked his pulse. Defendant's
statement to Varden indicates defendant's personal belief that
the victim might have lived through the severe beating as he lay
tied up on the ground. Viewed in the light most favorable to the
State, the evidence in this case supports the trial court's
submission of the (e)(9) aggravating circumstance that the murder
was especially heinous, atrocious, or cruel. This assignment oferror is overruled.
[15]By assignment of error, defendant contends the trial
court erred when it allowed the State's expert witness to give
inherently unreliable opinion testimony. At the sentencing
proceeding, Dr. Sporn was qualified as an expert in forensic
pathology. During direct examination, Dr. Sporn explained that
he did not perform the autopsy on the victim's body but that he
did review Dr. Thompson's autopsy report, a transcript of
Dr. Thompson's prior testimony, and the autopsy photographs. As
Dr. Sporn testified concerning his observations of the autopsy
photographs, defense counsel requested an opportunity to question
Dr. Sporn outside the presence of the jury. After extensive
questioning by both the prosecution and defense counsel outside
the presence of the jury, the trial court allowed Dr. Sporn to
describe to the jury the nature of the victim's injuries.
Dr. Sporn testified, among other things, that the victim received
“clearly several, more than two,” blunt-force injuries and that
the injuries could have been caused by a baseball bat, a shovel
handle, or a tire iron.
Defendant contends that Dr. Sporn's testimony was inherently
unreliable and that its admission violated his constitutional
rights. Pursuant to Rule 10(b)(1) of the North Carolina Rules of
Appellate Procedure, however, “a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to
make” in order to preserve a question for appellate review. N.C.
R. App. P. 10(b)(1). During defense counsel's voir dire ofDr. Sporn, the trial court specifically asked defense counsel
whether they had any objections to the proposed testimony of
Dr. Sporn. One of defendant's attorneys responded, “It's not
that I don't have any objections, I mean, if I could think of a
legal basis for it, I'd be making it.” Thereafter, when
Dr. Sporn testified before the jury, defense counsel failed to
object. Accordingly, defendant has failed to preserve this
assignment of error for appellate review. In addition, this
Court will not review defendant's constitutional argument because
the issue was not “'raised and determined in the trial court.'”
State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999)
(quoting State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27
(1985)). Finally, defendant has failed to assert plain error on
appeal. See N.C. R. App. P. 10(c)(4). Therefore, this
assignment of error is overruled.
[16]In a related assignment of error, defendant contends
the trial court erred when it overruled defendant's objections to
the prosecutor's improper cross-examination of Dr. Sporn outside
the presence of the jury. Specifically, defendant argues the
prosecutor improperly led Dr. Sporn during cross-examination in
such a manner that the prosecutor testified for the witness.
Defendant contends the challenged cross-examination violated his
due process rights.
The record reveals that defendant objected twice during the
prosecutor's cross-examination of Dr. Sporn, as follows:
[PROSECUTOR]: All right. Now, did you, now this
examination that you did, based on the evidence . . .
now, Mr. Lynch asked you some questions and you gave
some answers. Certainly your opinion might be . . . .
[DEFENSE COUNSEL]: . . . OBJECTION to his
testifying, now, this is voir dire. That's when he's
(Unintelligible) testify (sic).
THE COURT: OVERRULED.
[PROSECUTOR]: Certainly your opinion would be, in
other words, it would be better if you had actually
examined the body, is that correct?
[DR. SPORN]: Well, for, for giving an opinion as
to the precise number of blows, yes.
[PROSECUTOR]: Yes. But, the fact that you did
not actually examine the body does not prevent you from
forming an opinion to a reasonable degree or medical
certainty as to the questions I asked you about the
nature of the wounds, the number of wounds, and whether
these objects which have been previously introduced
could have caused those wounds, is that correct?
[DEFENSE COUNSEL]: OBJECTION. May I be heard on
the objection?
THE COURT: Yes.
[DEFENSE COUNSEL]: Here's my objection. We have
a, a, an expert who has said himself that his opinion
could be inherently unreliable. We have a lawyer[] who
is not a doctor or a pathologist making such leading
questions that he is suggesting to him how to get to
where he couldn't get to on his own knowledge, and I
OBJECT to that.
THE COURT: Well, I SUSTAIN the question.
[DEFENSE COUNSEL]: You sustained the question?
THE COURT: I'm going to SUSTAIN the . . . .
[DEFENSE COUNSEL]: . . . yes, sir . . . .
THE COURT: . . . the question that you just
asked.
Based on this record, the precise nature of defendant's
first objection is unclear. In any event, the prosecutor
restated the same question and the trial court ultimately
sustained defendant's second objection to the manner in which the
prosecutor was leading Dr. Sporn. “Where the trial courtsustains a defendant's objection, he has no grounds to except.”
State v. Woods, 345 N.C. 294, 311-12, 480 S.E.2d 647, 655, cert.
denied, 522 U.S. 875, 139 L. Ed. 2d 132 (1997); accord State v.
Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991). In addition,
we note that, both during voir dire and before the jury,
defendant similarly asked Dr. Sporn whether his opinions would
have been better formed if he had personally examined the
victim's body. “'Where evidence is admitted over objection and
the same evidence has been previously admitted or is later
admitted without objection, the benefit of the objection is
lost.'” Trull, 349 N.C. at 446, 509 S.E.2d at 191 (quoting State
v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995)).
Therefore, defendant has waived his right to raise this objection
on appeal. Even assuming arguendo that this issue was properly
preserved and that the trial court committed error, we
nonetheless conclude that the challenged cross-examination did
not prejudice defendant, as it occurred outside the presence of
the jury. Moreover, defendant did not object to Dr. Sporn's
testimony before the jury. This assignment of error is
overruled.
[17]By assignment of error, defendant contends the
short-form murder indictment violated his federal constitutional
rights as it failed to allege all the elements of first-degree
murder. At the outset, we note defendant did not challenge the
murder indictment in the trial court. Constitutional questions
“not raised and passed upon in the trial court will not
ordinarily be considered on appeal.” State v. Hunter, 305 N.C.106, 112, 286 S.E.2d 535, 539 (1982). As a general rule, a
defendant waives an attack on the indictment when the indictment
is not challenged at trial. State v. Robinson, 327 N.C. 346,
361, 395 S.E.2d 402, 411 (1990). However, when an indictment is
alleged to be facially invalid, thereby depriving the trial court
of its jurisdiction, it may be challenged at any time,
notwithstanding a defendant's failure to contest its validity in
the trial court. State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d
428, 436-37 (2000), cert. denied, ___ U.S. ___, 148 L. Ed. 2d 797
(2001). Thus, this issue is properly before this Court.
[18]In support of his challenge to the validity of the
murder indictment, defendant cites the United State Supreme
Court's decision in Jones v. United States, 526 U.S. 227, 143 L.
Ed. 2d 311 (1999). We have repeatedly addressed and rejected
defendant's argument. See, e.g., Braxton, 352 N.C. 158, 531
S.E.2d 428. In Braxton, this Court examined the validity of
short-form indictments in light of the United States Supreme
Court's decisions in Jones, 526 U.S. 227, 143 L. Ed. 2d 311, and
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000),
and concluded that nothing in either case altered prior case law
on these matters. Braxton, 352 N.C. at 175, 531 S.E.2d at
437-38. Defendant has presented no compelling basis for this
Court to revisit the issue in the present case. Accordingly,
this assignment of error is overruled.
*** Converted from WordPerfect ***