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IN THE SUPREME COURT OF NORTH CAROLINA
No. 389A01
FILED: 20 DECEMBER 2002
STATE OF NORTH CAROLINA
v.
KYLE O. BERRY
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
a judgment imposing a sentence of death entered by Lanier, J., on
30 March 2001 in Superior Court, New Hanover County, upon a jury
verdict finding defendant guilty of first-degree murder. Heard
in the Supreme Court 14 October 2002.
Roy Cooper, Attorney General, by John H. Watters,
Special Deputy Attorney General, for the State.
Thomas K. Maher for defendant-appellant.
EDMUNDS, Justice.
Defendant Kyle Berry was indicted for the first-degree
murder of Margaret Theresa Fetter. He was convicted on the basis
of premeditation and deliberation and sentenced to death.
The State presented evidence that Timothy Ratliff was
eating at a McDonald's restaurant in Wilmington on 5 November
1998. He was approached by Bobby Autry, who asked for a
cigarette. Autry, accompanied by Theresa Fetter, the victim,
later returned to Ratliff and asked Ratliff to rent a motel room
for him. They all drove to a Motel Six on Market Street, where
Fetter provided funds to Ratliff. Ratliff entered the motel,
rented a room, and gave the receipt to Fetter. Later that same day, Erwin Hegwer received a telephone
call from his step-grandson, Jon Malonee. In response to the
call, Hegwer drove to the Motel Six, where he picked up Malonee,
defendant, Autry, Josh Whitney, and Fetter. He dropped them off
at the parking lot of the Food Lion grocery store at Seventeenth
Street and South College Road in Wilmington. Malonee later
called Hegwer again about 1:30 a.m. on 6 November 1998. Hegwer
drove to New Hanover Regional Hospital, where he picked up
Malonee, defendant, and Autry and took them back to the Motel
Six. When he asked where “the girl” was, he was told that
Whitney had driven her home.
Defendant and the others were at the hospital because
defendant's hand had been lacerated. Emergency medical
technicians (EMTs) had responded to the Food Lion parking lot at
approximately 12:30 a.m. Defendant left a group of people,
approached the EMT vehicle, and displayed the cut. A Wilmington
police officer who had also responded asked defendant about the
injury. Defendant reported that he had fallen behind the Food
Lion while walking home from a friend's house. He could neither
name the friend nor describe where the house was, and the officer
was unable to find any glass or other material that might have
caused the injury. The EMTs bandaged defendant's hand and
transported him to the hospital, where he was examined by
Dr. Thomas E. Parent, an orthopedic surgeon who specializes in
hand surgery. Dr. Parent later operated on defendant's hand on
11 November 1998. It was Dr. Parent's opinion as an expert in
the field of orthopedic treatment and surgery that defendant'sinjury did not result from a fall, but was consistent with
defendant having been cut by a knife.
Fetter's body was found on 24 November 1998. At that
time, Autry was incarcerated in the New Hanover County jail.
Autry had spoken with Wrightsville Beach Police Officer Hovie
Pope on 23 November 1998, and as a result of the conversation,
Pope checked Autry out of jail the next day. They drove to an
area near Seventeenth Street and South College Road, where they
walked down a trail into a wooded lot and observed a badly
decomposed corpse. The body was near the SPEC day care center,
not far from the Food Lion on Seventeenth Street and South
College Road. Being unsure which agency had jurisdiction,
Officer Pope called investigators from both the New Hanover
Sheriff's Department and the Wilmington Police Department. When
the investigators arrived, Officer Pope showed them pieces of
pipe and a knife, all of which he had observed at the scene.
Wilmington Police Detective Thomas Witkowski recovered a twenty-
four-inch piece of pipe near the body and a forty-eight-inch
piece of pipe at the back of a nearby parking area. He also
discovered a folding knife with a red handle. SBI Agent Dennis
Honeycutt sprayed the area with luminol, a chemical that reacts
to blood, and saw indications of a blood trail near the point
where the victim's body was found.
In a pocket of Fetter's pants, investigators found a
receipt from the Motel Six dated 5-6 November 1998, in the name
of Timothy Ratliff. The autopsy of Fetter's body was conducted
by Dr. John Butts, who noted two cutting injuries to the leftforehead. He also observed broken bones around the left eye and
two breaks in the left jaw, which he characterized as blunt-force
injuries. Indentations in the left rear of the victim's skull
indicated to him that she had been twice struck with a sharp
object. In addition, he observed injuries to the victim's hands,
which he characterized as defensive wounds suffered as she tried
to ward off blows. The victim's lungs showed signs of infection
or pneumonia, indicating that the head injuries had not killed
her outright. Dr. Butts' expert opinion was that she died as a
result of blunt-force injuries.
Defendant made a number of statements to others about
the murder. In so doing, he explained that he killed Fetter to
keep her from talking about a murder he had previously committed
on 17 or 18 September 1998. During a conversation with his
friend David Surles, defendant said he had seen a woman, later
determined to be Lisa Maves, while at the beach. He related that
the woman was upset, so he talked with her and had sex with her.
Defendant then said that the woman afterwards was “freaking out,”
so he stabbed her in the head with a bottle. Defendant told
Surles that Fetter knew about this earlier killing of Lisa Maves
and that he slit Fetter's throat to keep her from telling about
it. Defendant stated that he had dumped Fetter's body behind the
SPEC building. In his court testimony about this conversation,
Surles added that defendant's nickname, “Crazy K,” came from
“gang members and stuff.”
Marvin Harper testified that while he was in the New
Hanover County jail, he heard defendant and Josh Whitley talkingabout the killing of a young girl who was found on Highway 132.
Harper also heard defendant say that he killed the girl found on
Highway 132 because he knew she would testify against him about
the girl on the beach.
Paul Venth testified that he had shared a jail cell
with defendant in August and September 1999. Defendant told
Venth about an incident when he and Jon Malonee were with a woman
on the beach. When the woman became angry, defendant said he
stabbed her in the side of the head, and the knife became stuck.
He added that stabbing someone in the head was quick, efficient,
and silent, and that the killing had made him feel good.
Defendant related that he and Malonee put her body in the water
but the tide washed it ashore. Defendant also stated that he
killed Fetter to keep her from talking about the earlier murder
and about other crimes of his with which she was familiar.
Defendant said Fetter was led into the woods where Bobby Autry
hit her first with a metal bar. When defendant tried to stab
her, his folding knife closed over his fingers and cut his hand
so badly that he had to go to the hospital. Defendant added that
when he and others returned to the scene the next day, Fetter had
apparently crawled a short distance, so they moved the body back
and covered it with leaves.
Rachael Williams testified that she had been Fetter's
friend. In October 1998, Fetter told Williams that she knew that
Jon Malonee and defendant were involved in a murder at
Wrightsville Beach and feared that they were going to try to kill
her. The State provided evidence to corroborate defendant's
admissions that he had participated in the murder of Lisa Maves.
Dr. John Almeida, an expert in forensic pathology, conducted the
autopsy. He testified that Maves had two stab wounds to the
head, one of which had penetrated the brain. He also found
symptoms of other blunt-trauma wounds to the head. In his
opinion, Maves died as a result of the blunt trauma. He added
that stab wounds to the head are unusual.
Defendant was indicted for the first-degree murder of
Fetter. He was also indicted for the murder of Maves, but the
trial court denied the State's motion to join the cases for
trial. However, the court did permit the State to present
evidence of the Maves killing during defendant's trial for the
murder of Fetter. In preparation for trial, defense counsel
filed notice of intent to rely on the defense of insanity.
Accordingly, defendant was evaluated at Dorothea Dix Hospital in
Raleigh. On 15 February 2001, defendant was picked up at Dix by
officials of the New Hanover County Sheriff's Department for
return to Wilmington. Despite being shackled, defendant escaped
from the deputies' van when it reached Wilmington but was
apprehended about an hour and a half later.
Although defendant had provided notice of a proposed
defense of insanity and predicted such a defense to the jury
during his opening statement, he did not present evidence during
the guilt-innocence portion of his trial. On 23 March 2001,
defendant was convicted of the first-degree murder of Theresa
Fetter on the basis of premeditation and deliberation. The Statedid not offer additional evidence during the sentencing
proceeding. Defendant presented evidence of mental disorders not
amounting to insanity. Other evidence indicated that defendant
suffered from substance-abuse problems and was impaired at the
time of the offense. Defendant also adduced evidence that a head
injury suffered in an earlier automobile accident had led to
changes in his personality.
At sentencing, the jury found the aggravating
circumstances that the murder was especially heinous, atrocious,
or cruel; that the murder was part of a course of conduct
including other crimes of violence against another person or
persons; and that the murder was committed to prevent arrest or
to effect defendant's escape. The jury also found the statutory
mitigating circumstances that the murder was committed while
defendant was under the influence of a mental or emotional
disturbance and that defendant's capacity to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was impaired. In addition, the jury
found six nonstatutory mitigating circumstances and the catchall
mitigating circumstance. The jury then found that the mitigating
circumstances were insufficient to outweigh the aggravating
circumstances and recommended a sentence of death. Sentence was
imposed on 30 March 2001.
JURY SELECTION ISSUES
Defendant argues that the trial court improperly
excused for cause three prospective jurors who expressed
reservations about imposing the death penalty. We note at theoutset that defendant has raised this assignment of error in the
context of the sentencing proceeding, and one comment by defense
counsel to the court during voir dire suggested that a juror
might be qualified as to the guilt-innocence phase only.
However, we have held that a trial court may not select for the
guilt-innocence phase of a trial a panel of jurors, some of whom
oppose the death penalty while others are not so opposed, with
the understanding that different jurors, all of whom are
unopposed to the death penalty, will be substituted for the
sentencing proceeding. State v. Bondurant, 309 N.C. 674, 681-82,
309 S.E.2d 170, 175-76 (1983); see also N.C.G.S. § 15A-2000(a)(2)
(2001). Accordingly, we will not restrict our consideration of
this assignment of error to the sentencing proceeding.
A prospective juror may be excused for cause when “[a]s
a matter of conscience, regardless of the facts and
circumstances, [the juror] would be unable to render a verdict
with respect to the charge in accordance with the law of North
Carolina.” N.C.G.S. § 15A-1212(8) (2001). A prospective juror
is not disqualified for having strong feelings against the death
penalty as long as the juror can put those feelings aside and
apply the law. State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d
905, 907-08 (1993). However, where a prospective juror indicates
that he or she cannot follow the law as given by the trial
judge's instructions, it is error not to excuse that prospective
juror. State v. Hightower, 331 N.C. 636, 641, 417 S.E.2d 237,
240 (1992).
“[T]o determine whether a prospective juror
may be excused for cause due to that juror'sviews on capital punishment, the trial court
must consider whether those views would
'[“]prevent or substantially impair the
performance of his duties as a juror in
accordance with his instructions and his
oath.[”]' Wainwright v. Witt, 469 U.S. 412,
424, 83 L. Ed. 2d 841, 851-52 (1985)
[(quoting Adams v. Texas, 448 U.S. 38, 45, 65
L. Ed. 2d 581, 589 (1980))].” State v.
Bowman, 349 N.C. 459, 469-70, 509 S.E.2d 428,
435 (1998), cert. denied, [527] U.S. [1040],
[144] L. Ed. 2d [802] (1999).
State v. Hedgepeth, 350 N.C. 776, 794, 517 S.E.2d 605, 616 (1999)
(first through fourth alterations in original), cert. denied, 529
U.S. 1006, 146 L. Ed. 2d 223 (2000). A judge may excuse a
prospective juror who has not been challenged by either party if
the judge determines that grounds for a challenge for cause are
present. N.C.G.S. § 15A-1211(d) (2001). Challenges for cause
lie within the discretion of the trial court and are reviewed for
abuse of discretion. State v. Kennedy, 320 N.C. 20, 28-29, 357
S.E.2d 359, 364 (1987).
Defendant first contends that prospective juror Powell
was improperly excused. When Powell initially was questioned by
the court, he stated that he could follow the evidence and the
law and that he thought the death penalty was an acceptable
punishment. The prosecutor then used voir dire to walk Powell
through a capital trial and sentencing proceeding, at the
conclusion of which Powell reiterated that he thought he could
fairly apply the law. The prosecutor next discussed the nature
of circumstantial evidence and advised Powell that the State
would present circumstantial evidence both to establish
defendant's intent and also as to “other evidence.” Referring to
sentencing, Powell responded, “If there were no direct evidence,it was all circumstantial, I don't know if I could do that.” The
prosecutor continued:
Q. So even if you were convinced, beyond a
reasonable doubt, that he was -- there was an
aggravating factor -- first of all, he was
guilty.
A. Okay.
Q. And if you were convinced, beyond a
reasonable doubt, that the aggravating factor
existed and it outweighed the mitigating
factors, and it was substantially sufficient
to call for the death penalty, in a
circumstantial evidence case, you would not
be able to --
A. No, I can't do that.
At that point, defense counsel then asked the court to
provide prospective juror Powell with the pattern instruction on
the difference between direct and circumstantial evidence. The
prosecutor moved to strike Powell for cause. The court denied
the State's motion, recited to the prospective juror the pattern
instruction requested by defense counsel, and the colloquy
continued:
[PROSPECTIVE JUROR POWELL:] For me to decide
between life or death of an individual, I
know what the law says.
THE COURT: Okay.
[PROSPECTIVE JUROR POWELL:] But I'm going to
have to have some direct evidence. If it
were 100 percent circumstantial, I don't
think I could do that.
THE COURT: All right. I'm going to allow it
for cause.
The court denied defendant's motion to rehabilitate prospective
juror Powell. We have held that there is no distinction between the
weight to be given to direct and circumstantial evidence.
Circumstantial evidence and direct
evidence are subject to the same test for
sufficiency, State v. Sokolowski, 351 N.C.
137, 143, 522 S.E.2d 65, 69 (1999), and the
law does not distinguish between the weight
given to direct and circumstantial evidence,
State v. Adcock, 310 N.C. 1, 36, 310 S.E.2d
587, 607 (1984). “'Premeditation and
deliberation generally must be established by
circumstantial evidence, because both are
processes of the mind not ordinarily
susceptible to proof by direct evidence.'”
Sokolowski, 351 N.C. at 144, 522 S.E.2d at 70
(quoting State v. Rose, 335 N.C. 301, 318,
439 S.E.2d 518, 527, cert. denied, 512 U.S.
1246, 129 L. Ed. 2d 883 (1994), and overruled
on other grounds by State v. Buchanan, 353
N.C. 332, 543 S.E.2d 823 (2001)).
State v. Parker, 354 N.C. 268, 279, 553 S.E.2d 885, 894 (2001),
cert. denied, ___ U.S. ___, 153 L. Ed. 2d 162 (2002). Because
the prospective juror was unable or unwilling to state that he
would follow the law, the court properly allowed the motion to
strike for cause. Although prospective juror Powell's answers
were not consistent during voir dire, in that he sometimes stated
that he could follow the law, while other times he qualified his
answers by adding that he would require more than circumstantial
evidence, “[t]he trial court has the opportunity to see and hear
a juror and has the discretion, based on its observations and
sound judgment, to determine whether a juror can be fair and
impartial.” State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553,
561 (1997). In light of Powell's final assertion that he could
not follow the law if the evidence were circumstantial, the trial
court did not abuse its discretion in excusing him for cause. Defendant next contends that prospective juror Bixby
was improperly excused for cause. When she was called into the
jury box, the trial court commented on the fact that she was a
teacher and asked her if she had heard the initial instructions
given to all prospective jurors in the case. Bixby responded by
pointing out potential scheduling conflicts:
[PROSPECTIVE JUROR BIXBY] . . . I didn't
realize -- you never mentioned how long this
was going to take for the trial period, and I
have reservations for school vacation which
begins the 11th, and I also have an
appointment for a sleep apnea test on the
25th and [2]6th of March that I've waited for
since the beginning of January.
[THE COURT]: Since the beginning of last
June?
A. January.
Q. Last January, all right. All right, I've
got one question I've got to ask before we go
any further. What are Gold Wing Road Riders?
A. Motorcycle club.
Q. You're a member of a motorcycle gang?
A. Uh-huh.
Q. Okay.
A. That's just a spark of my life.
Q. Well, my brother is into that. I see
here you do not believe in the death penalty.
A. No.
Q. Is that an unalterable belief?
A. Yes. I'm Roman Catholic and I don't
believe in it.
THE COURT: All right. I'm going to
excuse you for cause. You're free to go.
[DEFENSE COUNSEL]: Objection. And
motion to rehabilitate.
THE COURT: Okay.
[DEFENSE COUNSEL]: Thank you.
THE COURT: Maybe we ought to say cause
and personal hardship. That will make it
look a bit better.
Defendant correctly points out that mere opposition to
the death penalty does not disqualify a prospective juror if the
juror can set aside his or her personal beliefs and follow the
law. However, the court here asked an additional question and
determined that prospective juror Bixby's opposition was
unalterable. A prospective juror who will not follow the law may
be excused for cause. “A juror is properly excused for cause
based on his views on capital punishment if those views would
prevent or impair the performance of his duties as a juror in
accordance with his instructions and his oath.” State v.
Richardson, 346 N.C. 520, 529-30, 488 S.E.2d 148, 153 (1997)
(citing Wainwright v. Witt, 469 U.S. at 424, 83 L. Ed. 2d at
851-52), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 652 (1998).
Accordingly, the court did not abuse its discretion in excusing
prospective juror Bixby for cause.
Finally, defendant argues that prospective juror Smith
was improperly excused for cause. When Smith was called to the
jury box, the following exchange ensued:
[THE COURT]: All right, Mr. Smith, good
afternoon.
[PROSPECTIVE JUROR SMITH]: Good afternoon.
Q. I see here from your jury questionnaire
that you are telling me that you are opposed
to capital punishment.
A. Yes.
Q. All right. Now, the State of North
Carolina does not require its citizens to
take one view or the other. You're free to
believe ever how [sic] you want to on the
issue of capital punishment, because it is a
matter about which reasonable minds can
differ. However, the law of this state is
that, for first degree murder, some first
degree murder, not every first degree murder,
the state has declared that, for certain
first degree murders, capital punishment is
an appropriate punishment. Now, the test as
to whether or not you can serve as a juror in
this case is whether or not you can put aside
your personal feelings and follow the law of
this state as I give it to you in making a
determination as to the guilt or innocence of
this defendant. And then, if we reach the
sentencing phase, to properly and fairly
weigh both possible penalties, both the death
penalty and life in prison without parole.
So you're the only one that knows.
So can you follow the law, or are your
feelings and your -- or your moral tenets
such that it would be impossible for you to
follow the law?
A. Would you repeat that?
Q. I say, knowing that the law of North
Carolina is that the death penalty is
considered an appropriate punishment for some
first degree murders, the question whether
you're suitable for this case or not is not
what you believe, but whether you can follow
the law, in spite of what you believe. You
know that. You're the only one that knows.
I mean, can you set aside your personal
beliefs against the death penalty in this
particular case and base your decision on the
law of North Carolina and the evidence that
you hear from the witness stand?
A. I don't know.
Q. Okay. What do you think?
A. Based on what I believe?
Q. Yes, sir.
A. I believe that an individual that's found
guilty should spend the rest of his life in
prison.
Q. So, in other words, if you were on this
jury and it got to the sentencing phase, you
would automatically vote for life
imprisonment without parole?
A. I believe I would.
Q. Okay. You could not even consider the
other possibility of the death penalty?
A. It would probably be hard to consider.
Q. Okay. Well, hard is -- I hope it's hard
for everybody to consider, because it's
serious, it's a serious decision; but the
question is, can you fairly consider both
possible punishments, or are your feelings
such that you would automatically vote for
life in prison?
A. I think I would possibly vote for life in
prison.
Q. Regardless of what the evidence was?
A. I think I would.
Q. Okay. And regardless of what the law is?
A. I think I would.
Q. All right. Well, I appreciate your
telling it to us just like it is.
THE COURT: And I think he is
unequivocal in his opposition. I am going to
excuse him for cause. Mr. Weber?
[DEFENSE COUNSEL]: Judge, we would like
to object and move to rehabilitate and ask
the court to inquire as to his ability to sit
at guilt/innocence.
THE COURT: Okay. Well, your motion to
rehabilitate is denied, but I will -- Would
you have any problem in just sitting in theguilt/innocence phase, knowing if you find
him guilty, the next step is to determine
punishment?
[PROSPECTIVE JUROR SMITH]: I think that
I probably could, but you do understand that
that would still be my stand?
THE COURT: I understand. Thank you
very much.
The court's original questions correctly set out the
law and a juror's responsibility to follow the law, even where it
conflicted with the juror's individual beliefs. Although
prospective juror Smith's answers are arguably equivocal in that
he said only that he “thought” he would respond in a certain way,
his final comment to the court about his “stand” indicates that
the court properly interpreted his earlier answers as unambiguous
opposition to the death penalty regardless of the law or
evidence. See State v. Syriani, 333 N.C. 350, 371, 428 S.E.2d
118, 128-29, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341
(1993). The experienced trial court was in the best position to
observe this prospective juror and to evaluate his answers, State
v. Dickens, 346 N.C. at 42, 484 S.E.2d at 561, and did not abuse
its discretion in excusing Smith. This assignment of error is
overruled.
GUILT-INNOCENCE ISSUES
Defendant argues that the trial court erred in
admitting irrelevant and unfairly prejudicial evidence relating
to the slaying of Lisa Maves. Defendant's position is that the
evidence was unnecessarily inflammatory, especially in light of
defendant's tactical decision to concede at trial some
participation in Fetter's murder. Only relevant evidence is admissible. N.C.G.S. § 8C-1,
Rule 402 (2001). Relevant evidence is “evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” N.C.G.S. § 8C-1, Rule
401 (2001). Even relevant evidence may be inadmissible if the
probative effect of the evidence is substantially outweighed by
the danger of unfair prejudice. N.C.G.S. § 8C-1, Rule 403
(2001). However, the balancing of these factors lies “within the
sound discretion of the trial court, and the trial court's ruling
should not be overturned on appeal unless the ruling was
'manifestly unsupported by reason or [was] so arbitrary that it
could not have been the result of a reasoned decision.'” State
v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (quoting
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)),
cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001).
Even if a trial court concludes that evidence of a
defendant's other crimes or bad acts is admissible under Rule
403, the court must then determine whether the evidence should be
excluded pursuant to Rule 404, which provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (2001). We have held that Rule
404(b) is a rule of inclusion, subject to the single exception
that such evidence must be excluded if its only probative valueis to show that defendant has the propensity or disposition to
commit an offense of the nature of the crime charged. State v.
Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
The record shows that the trial court considered the
admissibility of the evidence pertaining to Lisa Maves at the
beginning of the trial. After the prosecutor made an oral
proffer of the evidence, the court allowed defendant to be heard
in opposition. The court then advised counsel that it had
reviewed the relevant cases and concluded that the evidence was
admissible pursuant to Rule 404(b). The court added that it
would provide the jury with a limiting instruction at the proper
time. Accordingly, when the prosecutor first introduced evidence
related to Lisa Maves through witness David Surles, the court
instructed as follows:
Ladies and gentlemen, the State of North
Carolina is starting to offer evidence of the
conduct of the defendant which occurred
before the offense for which he is being
tried, okay. Now, this evidence is offered
for a very limited purpose and may be
considered by you only for that limited
purpose. The purpose for which this evidence
is offered is to establish the intent of the
defendant, which is a necessary element of
the crime charged in this case, as well as
his motive and knowledge. It is the jury's
responsibility to determine if this evidence
does, in fact, show all or any or none of
those things. You are to consider this
evidence solely for the purpose of
establishing the motive, intent, knowledge of
the person or persons responsible for the
death of [the victim]. All right.
The court gave similar instructions before the testimony of
State's witnesses Marvin Harper and Paul Venth. Based on this record, we find no error in the court's
admission of the evidence. Although defendant correctly
characterizes the evidence of the Maves murder as prejudicial,
the test is whether the prejudice was unfair. See N.C.G.S.
§ 8C-1, Rule 403. The trial court showed exemplary caution in
its handling of this evidence. It carefully studied the
substance of the evidence, reviewed the applicable law, and
considered the arguments of counsel before determining that the
probative value of the evidence was not substantially exceeded by
any unfairly prejudicial impact. After determining that Rule 403
did not require exclusion of the evidence, the court then
considered whether the evidence was being offered for a proper
purpose under Rule 404, to establish defendant's intent, motive,
and knowledge. Defendant's comments to others that he killed
Fetter to prevent her from talking about the Maves murder readily
fits all three of these permissible purposes.
Defendant cites State v. Morgan, 315 N.C. 626, 340
S.E.2d 84 (1986), and State v. Mills, 83 N.C. App. 606, 351
S.E.2d 130 (1986), to support his argument that evidence of the
Maves murder was not admissible. In Morgan, the defendant in a
murder case claimed he shot the victim in self-defense. State v.
Morgan, 315 N.C. at 631, 340 S.E.2d at 88. While conducting his
recross-examination of the defendant, the prosecutor asked about
a separate incident when the defendant had pointed his shotgun at
others. Id. Apparently, the prosecutor did not seek a ruling on
the admissibility of this evidence prior to trial, the trial
court did not conduct a weighing test pursuant to Rule 403, anddefendant did not request a limiting instruction. Id. at 632,
640, 340 S.E.2d at 88, 93. The State argued that the evidence
rebutted the defendant's claim that he was acting in self-defense
when he shot the victim. We held that it was error for the trial
court to allow the prosecutor's cross-examination of the
defendant, undertaken for the purpose of establishing that the
defendant's character for violence negated his claim of self-
defense. Id. at 639, 340 S.E.2d at 93. A similar scenario arose
in State v. Mills, with the significant difference that the State
sought to disprove the defendant's claim of self-defense by
offering evidence of a prior assault by the defendant on the same
victim. State v. Mills, 83 N.C. App. at 609-10, 351 S.E.2d at
132. The Court of Appeals, citing Morgan, held that the evidence
was not admissible under Rule 404(b). Id. at 611-12, 351 S.E.2d
at 133-34.
Morgan and Mills are distinguishable. In both those
cases, the evidence was offered only to show that, at the time of
the offenses in question, the defendant was acting in conformity
with his aggressive character. In the case at bar, the evidence
was tendered to establish the permissible factors that defendant
knowingly and intentionally killed Theresa Fetter in order to
silence her. This assignment of error is overruled.
Defendant argues that the trial court improperly
admitted prejudicial evidence that defendant was a member of a
gang. Defendant cites the testimony of Wilmington Police
Lieutenant Maultsby, who testified that the case was assigned to
the “gang unit”; Surles' testimony that defendant had a gangnickname; Williams' testimony that the victim was in the gang;
EMT Eric Kasulis' testimony that he first observed defendant at
the Food Lion parking lot in a group that might have been up to
no good; and Venth's testimony that he did not like being asleep
in his cell with defendant.
Lieutenant Maultsby testified that after the victim's
body was found, his agency assumed responsibility for the
investigation. During his direct examination, the following
exchange took place:
[PROSECUTOR:] Okay. And did you -- what did
you do next?
A. I stood by for a period of time to
oversee the processing. I requested our ID
technicians come out. Captain Carey, who was
my supervisor, also arrived, and we discussed
some other avenues as far as processing the
crime scene. I know that Sergeant Clatty,
who was assigned to the gang unit --
[DEFENSE COUNSEL]: Objection, Judge.
We need to voir dire this witness at this
juncture.
THE COURT: Approach the bench.
(A BENCH CONFERENCE WAS HELD AS FOLLOWS:)
(See footnote 1)
THE COURT: All right, folks, this gang
business has already been brought up because
y'all said she had to get beat out of it.
[DEFENSE COUNSEL]: [Co-counsel] made
the objection, not me.
[DEFENSE COUNSEL]: The door has been
opened. I didn't know how far down the road
with this gang thing we were going.
[PROSECUTOR]: Y'all opened the door.
THE COURT: We'll go some distance
because the door is there.
[DEFENSE COUNSEL]: It's not in
evidence. I realize that, but neither is the
admission that you made in your opening
statement as to [defendant's] sanity, but the
jury knows it.
[DEFENSE COUNSEL]: We can't put the
toothpaste back in the tube.
THE COURT: That's right.
THE COURT: You may answer the question.
Q. Go ahead, Officer Maultsby.
A. I had requested Sergeant Clatty, who is
also assigned to our unit, to bring a video
camera that they had acquired. We also
contacted some members of the traffic unit
who had some laser technology, for the
purpose of getting accurate measurements,
since this was a large wooded lot.
Defendant accurately argues that, despite everyone's
mistaken recollections to the contrary during the bench
conference, the door had not yet been opened because the earlier
references to gang activity had taken place outside the presence
of the jury. However, the transcript reveals that during his
entire testimony, Lieutenant Maultsby made this single brief
reference to gangs, and defendant objected immediately. Although
the court overruled the objection, Lieutenant Maultsby never
again spoke of gangs. In light of the fact that the witness did
not testify that defendant was part of a gang or even make a
direct connection between Sergeant Clatty's formal assignment and
his participation in this investigation, and the fact that
Lieutenant Maultsby thereafter addressed only the details of the
investigation, we are unable to hold that defendant has shownthat the outcome of the trial would have been any different if
this evidence had been excluded. See N.C.G.S. § 15A-1443(a)
(2001); see also State v. Williams, 355 N.C. 501, 538, 565 S.E.2d
609, 631 (2002); State v. Braxton, 352 N.C. 158, 183, 531 S.E.2d
428, 442-43 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d
797 (2001).
Defendant claims that witness Surles' testimony as to
defendant's nickname was prejudicial. The record shows that the
matter was first broached on cross-examination:
[DEFENSE COUNSEL:] Now, Mr. Surles, you did
know [defendant] good enough to know what his
nickname is, don't you?
A. Yes.
Q. Okay. What's his nickname?
[PROSECUTOR]: Objection.
THE COURT: Overruled.
A. Crazy K.
[DEFENSE COUNSEL]: I have no further
questions.
THE COURT: Okay.
REDIRECT EXAMINATION BY [THE PROSECUTOR]:
Q. Do you know where he got the nickname?
A. No, I do not.
Q. How would you describe your friendship --
ALTERNATE JUROR THREE: We couldn't hear
the nickname.
THE COURT: What did you say his
nickname was?
THE WITNESS: Crazy K.
. . . .
Q. How did you know his nickname is Crazy K?
A. Just from past people.
Q. From past people?
A. Yes, sir.
Q. Did he ever call himself Crazy K?
A. Yes, sir.
Q. Did he tell you where it came from?
A. No, sir.
Q. Did you -- who were these past people?
A. Past gang members and stuff.
Q. Whose gang members?
A. People that he associated with.
Q. Do you know if he was in a gang?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
Q. What people did he associate with?
[DEFENSE COUNSEL]: Objection.
THE COURT: I think he can give names,
if he's got them.
THE WITNESS: I can't remember exactly
what names, but I know as far as the Crips.
Q. Who were the Crips?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: Your Honor, he opened the
door.
THE COURT: Hmm.
[PROSECUTOR]: He asked about the
nickname.
[DEFENSE COUNSEL]: All I asked about
was the nickname.
THE COURT: That's right.
Q. Do you know what that nickname is --
strike that. Do you know where the nickname
comes from?
[DEFENSE COUNSEL]: Objection. He
answered that already.
THE COURT: Approach the bench.
(A BENCH CONFERENCE WAS HELD AS FOLLOWS:)
THE COURT: All right, I thought I had
previously ruled that we're not going to get
into any extensive discussions of gang
activity.
[PROSECUTOR]: Well, the nickname is a
gang name. He opened the door. That's his
gang name.
[DEFENSE COUNSEL]: He said he doesn't
know where it came from.
THE COURT: He's answered that, then.
[PROSECUTOR]: If he knows it's a gang
name, can we ask him that?
THE COURT: No. You've asked him if he
knew where it came from and he said no.
[PROSECUTOR]: Okay.
THE COURT: So leave it alone.
(END OF BENCH CONFERENCE.)
This evidence indicates that defendant opened the door
to questions about his nickname. Defendant had been asking what
Surles knew of defendant's prior psychiatric hospitalizations,
apparently in an attempt to tie the nickname to defendant's
purported lack of mental stability. In so doing, he gave the
State the opportunity to establish the source of the nickname. “[T]he law wisely permits evidence not otherwise admissible to be
offered to explain or rebut evidence elicited by the defendant
himself.” State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439,
441 (1981). When the prosecutor asked the names of the friends
who imposed the nickname on defendant, Surles responded with the
name of the gang itself. At this point, the judge properly
sustained defendant's objection and put an end to this line of
questioning. As above, we are unable to hold that defendant has
shown that the outcome of the trial would have been any different
if this evidence had been excluded. N.C.G.S. § 15A-1443(a). In
addition, defendant objected to Surles' testimony that he was
afraid of defendant's friends. The prosecutor asked Surles about
his concerns, and Surles responded that he had not wanted to
testify because he knew the people defendant “hung out with” and
did not want to “catch a bullet.” The trial court overruled
defendant's objection and denied his motion to strike. Although
we agree with defendant that this evidence was inadmissible, in
light of the evidence of defendant's guilt, we conclude that, as
above, the outcome of the trial would have been the same even had
this evidence been excluded.
We have also examined the other related testimony to
which defendant now objects and find no error. Williams'
testimony was to the effect that Fetter was involved with a gang
that included defendant, but she did not know if Fetter was a
member. Defendant's objection to this testimony was overruled.
This evidence was relevant to show Fetter's relationship with
defendant, and we fail to perceive that a different result wouldhave been likely if the evidence had not been admitted. EMT
Kasulis' testimony that he first saw defendant in a group that
may have been up to no good represented no more than the witness'
speculation. The trial court sustained defendant's objection to
Venth's statement that he did not like being asleep while
defendant was in the room, then allowed defendant's motion to
strike that testimony. Jurors are presumed to follow the trial
court's instructions. State v. Nicholson, 355 N.C. 1, 60, 558
S.E.2d 109, 148, cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___,
71 U.S.L.W. 3237 (2002). This assignment of error is overruled.
Defendant next argues that the trial court erred when
it failed to determine that defendant consented to his attorneys'
concession that he was guilty after he abandoned his insanity
defense. In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d
504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672
(1986), we held that a defendant receives ineffective assistance
of counsel per se when counsel concedes the defendant's guilt to
the offense or a lesser included offense without the defendant's
consent. The record in the case at bar shows that prior to trial
defendant executed a written waiver on 20 February 2001, which
stated:
I Kyle Berry have been told the risks
involved with my defense of insanity to the
charge of murder. I know such a defense
admits many elements of the offense such as:
my identification; my presence at the scene;
my connection to co-defendants[;] and my
possession of a weapon.
I authorize my attorneys to proceed with
this defense and conduct their questioning
accordingly.
This waiver was signed by defendant and a witness.
Defendant was questioned by the court at the beginning
of trial.
[THE COURT:] Mr. Berry, I understand
from your attorneys that in their openings
and closings, you know, there may be
statements made by them which could
constitute an admission as to your
participation in some of the events that are
on trial here. I further understand that
this [is] a trial strategy.
Now, has this been discussed with you?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Now, do you
understand what they're wanting to do, and do
you concur in their assessment of trial
strategy and in their actions?
THE DEFENDANT: Yes, sir. They
explained that to me.
THE COURT: Okay. I think that takes
care of that.
Shortly thereafter, defendant gave his opening statement in which
he admitted through counsel that he was present at Fetter's
murder and that he may have participated, but that because he was
not legally sane, he was innocent. “He is to blame, as are three
other people, but he is not guilty.”
Two days later, defendant's counsel raised an objection
to the court that they had just received from the prosecutor a
recording of a police interview with an individual named Michael
Walker and that the interview was not consistent with any
statement that had been provided during pretrial discovery. In
his recorded statement, Walker said that Jon Malonee stabbed
Fetter in the head. Defendant represented to the court: Michael Walker's interview sounds
nothing like any statements that I have seen
in the discovery. Among other things,
Michael Walker states that Jon Malonee
stabbed [the victim] in the head, which is
consistent, in part, with a video statement
that our client gave to the police in
February of '99. Now, had we been in
possession of Michael Walker's tape-recorded
statement, I am not real sure that we would
have entered a notice of our intent to plead
not guilty by reason of insanity, and I am
not real sure that we would have submitted
our client to an interview by a state
psychiatrist up at Dorothea Dix and had him
give the statement that he gave up there.
The court denied defendant's motions for sanctions and for a
mistrial. In his closing argument at the guilt-innocence phase,
defendant again argued through counsel that while the State may
have proved an attempt to commit first-degree murder, he should
be found not guilty or, at most, guilty of second-degree murder.
Although the parties dispute the exact nature of
defendant's concessions and whether any discovery violation
actually occurred, we believe the resolution of this issue may be
found in the trial court's inquiry to defendant at the opening of
the trial. This inquiry, quoted in full above, was general, and
defendant did not expressly or impliedly condition his consent to
acknowledge aspects of guilt upon presentation of an insanity
defense. Neither Harbison nor any subsequent case specifies a
particular procedure that the trial court must invariably follow
when confronted with a defendant's concession, see State v.
McDowell, 329 N.C. 363, 387, 407 S.E.2d 200, 213 (1991), although
we have urged “both the bar and the trial bench to be diligent in
making a full record of a defendant's consent when a Harbison
issue arises at trial,” State v. House, 340 N.C. 187, 197, 456S.E.2d 292, 297 (1995). While the court's inquiry was brief, it
was adequate to establish that defendant consented to the
admissions made later by counsel during trial. This Court's
opinion in State v. Morganherring, 350 N.C. 701, 517 S.E.2d 622
(1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 322 (2000), is
not to the contrary. In Morganherring, the defendant submitted
pretrial notice of intent to plead not guilty by reason of
insanity, but formally withdrew that notice on the first day of
trial and relied instead on a plea of not guilty as to murder but
guilty as to the sex offenses. The defendant memorialized this
change of strategy in a written Harbison statement. Although the
written statement referred to an intent to rely on an insanity
defense, counsel explained to the court that the statement was
prepared before the insanity defense notice was withdrawn but
that the defendant nevertheless consented to the admissions of
fact to the jury. The trial court questioned the defendant, then
allowed the trial to proceed. The defendant was convicted and
argued on appeal that he had not understood that abandoning his
insanity defense would allow the felony-murder rule to come into
play to his detriment. This Court remanded the case for an
evidentiary hearing, State v. Morganherring, 347 N.C. 393, 494
S.E.2d 399 (1997), then affirmed the trial court's finding that
the defendant knowingly consented to the change of strategy and
to admission of the facts alleged in the indictments, State v.
Morganherring, 350 N.C. at 718-19, 517 S.E.2d at 632-33.
In contrast, defendant in the case at bar never
formally withdrew his insanity plea and consequently never gavethe trial court notice of the change of strategy. Moreover,
defense counsel's words to the trial court were, at best,
ambiguous in that counsel stated that he was “not real sure”
defendant would have proceeded with an insanity defense if
Walker's taped statement had been provided to him earlier. In
the absence of notice by defendant that his Harbison waiver was
conditioned upon maintaining his insanity defense, the trial
court was justified in assuming that the waiver remained valid
throughout trial. This assignment of error is overruled.
Defendant's next assignment of error is related to the
preceding one. He contends that the trial court erred in failing
to impose meaningful sanctions when the prosecution delayed
disclosure of information pursuant to Brady v. Maryland, 373 U.S.
83, 10 L. Ed. 2d 215 (1963). Defendant's position is that the
prosecutor failed timely to reveal that Michael Walker had told
investigators that Malonee had stabbed the victim. Defendant
claims that he did not receive this information until after he
was committed to a defense strategy based on insanity and that if
the disclosure had been timely, he would have pursued a different
defense.
The record indicates that Walker made a statement or
statements in which he indicated that Malonee told him that he
(Malonee) had stabbed a woman. The State invites the attention
of this Court to the exhibits pertaining to this dispute, but no
exhibits have been submitted to this Court, nor does the record
suggest that the exhibits were introduced into evidence.
Accordingly, we undertake our review on the basis ofrepresentations made by counsel. After the trial was under way,
and after defendant had forecast to the jury that he would
present an insanity defense, the prosecutor provided to defendant
a copy of Walker's statement. Defendant advised the trial court
that Walker's statement was new, that it was consistent with a
statement defendant had earlier made to police, and that
had we been in possession of Michael Walker's
tape-recorded statement, I am not real sure
that we would have entered notice of our
intent to plead not guilty by reason of
insanity, and I am not real sure that we
would have submitted our client to an
interview by a state psychiatrist up at
Dorothea Dix and had him give the statement
that he gave up there.
The prosecutor responded by stating:
I'm not exactly clear whether [defense
counsel] is saying Walker said Malonee
stabbed [the victim] or the Maves woman.
This is what we gave them, a statement from
Jon Malonee, Jon had told him this. “Jon
said he was stabbing her, and I don't know if
that's Maves or [the victim], and it was like
stabbing a watermelon. Jon said he had blood
all over him. Jon said [defendant] was
rubbing her on the chest and in between her
legs. Jon said he and [defendant] took turns
having their way with her and put her to
sleep.” The statement from Walker says Jon
is not -- Jon stabbed the girl at the beach.
He is not sure if Jon stabbed the girl at the
beach or [the victim], in reference to the
watermelon. Jon told Mr. Walker that Bobby
had spoke to a girl and so on and so forth,
and that's what they've got.
(See footnote 2)
Defendant moved for sanctions and for a mistrial; both motions
were denied. It appears from the comments quoted above and from
other remarks of counsel elsewhere in the record that the
prosecutor provided defendant with the written statements of
Malonee from which Walker's name had been redacted. In his
statement, Malonee apparently reported that he had stabbed a
woman. During trial, the prosecutor additionally provided
defendant with Walker's own statement in the form of a videotape
and audiotapes, which corroborated Malonee. After considering
argument of counsel, the trial court reviewed Walker's material
in chambers and reported:
The first thing I need to address is
defendant's motions under Brady. Yesterday,
I conducted an in camera examination of the
Walker videotape -- well, really three
specific audiotapes. With respect to the
Walker video, it appears that Mr. Walker was
talking about what a codefendant told him.
The defendant was not present. However,
after looking at all of it, there was nothing
inconsistent with the evidence that has
already been presented on the [victim's]
case, and it was not, in my opinion,
exculpatory, as to the [victim's] case;
consequently, I find no violation of the
Brady rules. With respect to the audiotapes,
virtually the very same thing. The tapes
basically were a rehash of what we've heard
in court. Any new material, or material that
was not in court or presented in court, does
not rise to the level of exculpatory evidence
as to the [victim's] case.
Accordingly, we conclude that defendant received the substance of
Walker's statement when the prosecutor provided through discovery
the statement of Malonee in which Malonee said that he had
stabbed a female. We now determine whether this sequence of
events constitutes a Brady violation. The prosecution is required to turn over to a defendant
favorable evidence that is material to the guilt or punishment of
the defendant. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215.
Evidence is considered “material” if there is a “reasonable
probability” of a different result had the evidence been
disclosed. Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d
490, 506 (1995). Although a Brady violation may not constitute
error if the favorable evidence is provided in time for the
defendant to make effective use of it, State v. Call, 349 N.C.
382, 399, 508 S.E.2d 496, 507 (1998), defendant here points out
that opening statements had been made and the trial was under way
when he was given Walker's statement, far too late to retreat
from his original trial strategy.
Our review of the record satisfies us that no Brady
violation occurred. During the course of pretrial discovery,
defendant was provided Malonee's statement to the effect that he
had stabbed a woman. Thus, defendant was aware of the substance
of this statement in time to develop his trial strategy. See
State v. Strickland, 346 N.C. 443, 456-57, 488 S.E.2d 194, 202
(1997), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998).
Walker's statement did no more than corroborate that Malonee told
Walker the same thing he told police. Moreover, the evidence
established that several individuals were involved in the attack
on Fetter. Malonee's statement that he stabbed a woman is not
inconsistent with defendant's participation in Fetter's murder.
We do not perceive any reasonable probability of a different
result if defendant had been provided this corroborating evidenceearlier in the proceedings. This assignment of error is
overruled.
Defendant argues that the trial court erred in failing
to sustain his objections to various portions of the prosecutor's
closing argument in the guilt-innocence phase. We shall deal
with these objections seriatim.
First, defendant contends that the prosecutor
improperly argued about the impact of the crime on the victim and
her family. His position is that this evidence should not have
been allowed because the only issue before the jury was the
defendant's state of mind at the time of the murder. The
prosecutor argued as follows:
I want you to look at that picture because,
for all practical purposes, that's all that
Margie and Carl Fetter have to remind them of
Theresa, the pictures. Of course, the
pictures will remind them of how it was
taken, but the memory fades. The pictures
will be there, the pictures of her smile,
like that one there; the pictures of her
frowning; the pictures when she wouldn't
frown or smile because she had glasses --
excuse me, braces; the pictures of her
laughing with the family, doing this, doing
that; the pictures that show a little girl
that was 16 years old when she was killed;
pictures that showed potential and promise
and a future. She was 16. How many more
years would she have lived? . . . Eighty
something. Let's say 86, because I can
subtract 16 from 80 pretty [well]. It's
around 70. Seventy years, that's a lifetime
in . . . human history where 70 years was not
just one but two lifetimes. . . . Thirty-
five years to be born and be raised and
married and have children and grandchildren,
and that's what Theresa was going to do. She
was going to get -- she was going to go out
. . . [and] find her a boyfriend, maybe a
boyfriend more like Jason Santana than the
last one she had, and she was going to have
children, like --
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: -- like the ones that --
the other grandchildren these folks have,
more grandchildren for Carl and Margie to
spoil and, if lucky, she would have had
grandchildren of her own.
Because defendant made a timely objection:
We must determine whether the trial
court erred in overruling [the] objection.
We have consistently held that
counsel must be allowed wide latitude in
the argument of hotly contested cases.
He may argue to the jury the facts in
evidence and all reasonable inferences
to be drawn therefrom together with the
relevant law so as to present his side
of the case. Whether counsel abuses
this privilege is a matter ordinarily
left to the sound discretion of the
trial judge, and we will not review the
exercise of this discretion unless there
be such gross impropriety in the
argument as would be likely to influence
the verdict of the jury. . . . It is
the duty of the trial judge, upon
objection, to censor remarks not
warranted by the evidence or the law
and, in cases of gross impropriety, the
court may properly intervene, ex mero
motu.
State v. Covington, 290 N.C. 313, 327-28, 226
S.E.2d 629, 640 (1976) (citations omitted).
In making our determination, we examine the
full context in which the statements were
made. State v. Lloyd, 354 N.C. 76, 113-14,
552 S.E.2d 596, 622-23 (2001).
State v. Barden, ___ N.C. ___, ___, ___ S.E.2d ___, ___, 2002 WL
31628181, at *18 (Nov. 22, 2002) (No. 96A01). The comments
relating to the victim's age and expression are well within the
scope of appropriate argument, as is the fact that her parents
are left only with photographs and memories. See, e.g., State v.Nicholson, 355 N.C. at 39-40, 558 S.E.2d at 136 (victim-impact
testimony may include evidence of effect of victim's death on
members of her family). Although the prosecutor's arguments that
the victim might have married and had children was speculative,
it was not excessive. The life the prosecutor posited for the
victim if she had lived was a conventional one. Even assuming
arguendo that this part of the argument was improper, we do not
believe that the trial court abused its judgment in overruling
defendant's objection.
Next, defendant argues that one of the prosecutors
improperly vouched for another prosecutor. This issue arose when
the prosecutor responded to the portion of defendant's closing
argument that challenged witness Venth's motive for testifying.
Defense counsel argued:
Paul Venth is the guy that says that he was
testifying out of the goodness of his heart,
yet the state introduced a document that
shows that he had an assault case dismissed.
He got a plea bargain. . . .
You remember what Mr. Venth said. Oh,
I'm doing this out of the goodness of my
heart. But Hovie Pope, who is the arresting
officer in Mr. Venth's case, as well, Hovie
talked about possibly helping [Venth] out on
an attempted robbery charge up in Suffolk
County, New York.
The prosecutor responded by discussing Venth's written plea
agreement. Phyliss Gorham, the assistant district attorney who
negotiated Venth's plea agreement, was in the courtroom watching
but had not been a participant in defendant's trial. The
prosecutor pointed her out to the jury and said:
[PROSECUTOR:] You can talk about how I
didn't do something, you can talk about howCindy Locklear [co-prosecutor in the instant
trial] didn't do something, but Phyllis
Gorham is not going to put her name to
something --
[DEFENSE COUNSEL]: Objection. Phyllis
Gorham is not in evidence in this trial.
THE COURT: Overruled, overruled.
[PROSECUTOR]: And that's what this
document says. Not only is Phyllis Gorham's
name there, but Geoffrey Hosford, [Venth's]
attorney's name, is there, and that man swore
to it. There is no other plea bargain.
Although the prosecutor skirted perilously close to
vouching for Gorham, defendant's objection, even though
overruled, caused him to abandon that argument. Accordingly, we
see no prejudicial error in the court's failure to sustain
defendant's objection.
Defendant next objects to suggestions by the prosecutor
that Maves was raped. The record reflects that, during trial,
the prosecution called Surles as a witness and asked him what
defendant had said to him about Maves. After the court gave a
limiting instruction explaining the purposes for which evidence
of the Maves killing was being offered, the prosecutor asked
Surles what defendant had told him. Surles answered:
[Defendant] told me about the first murder,
that he was down at the beach and he was
walking with some friends of his and he was
-- and he had saw a woman, and she was upset,
that he had talked to her on the beach, had
sex with her, and then she was, as the term
goes, freaking out, and he stabbed her in the
head with a bottle.
No mention of rape was made until defendant cross-examined
Surles: Q. Now, [defendant] told you that this woman
that was killed at Wrightsville Beach, him
and Jon raped, is that correct?
A. That's correct.
Q. You've learned a lot about this case
since you became involved in it, haven't you?
A. Bits and pieces, yes.
Q. You've learned, haven't you, that there's
absolutely no evidence that the girl that was
found washed up at Wrightsville Beach had
been raped, aren't you?
[PROSECUTOR]: Objection.
THE COURT: Overruled, if he knows. If
you know, answer it; if you don't, tell him.
THE WITNESS: No, I do not.
Q. In any event, he said they raped the
girl, is that correct?
A. That's correct.
The question whether Maves had been raped arose again
during the prosecutor's closing argument when he said:
He said, oh, she wasn't raped. David
Surles says she wasn't raped. . . . But look
at this. Lisa's panties. Again, information
that no one would have had. He wasn't
charged with any murder of Lisa Maves. There
was no information that Lisa Maves's panties
were torn. There also wasn't a rape kit
done. We don't know if she was raped or not.
The fact of the matter is, those panties were
ripped and her short[s were] torn off her.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: Who knew that? Why would
he have said rape? Maybe because somebody
tried to rape her. Maybe because that's what
got her mad -- that's what got him mad
. . . . Your [sic] heard Paul Venth, he said
he killed her because something made him mad.
He tried -- ripped the shirt off, ripped herpanties. She didn't want to be raped, so he
killed her.
The prosecutor's argument was apparently triggered by
defendant's cross-examination of Surles. The focus of the
prosecutor's argument is less that Maves was raped than that
Surles had information that was not known to the public and could
only have been acquired by someone familiar with the event. In
addition, defendant told Surles that he killed Maves because she
“freaked out.” The prosecutor's argument represents an effort to
make sense of this statement by logically inferring a motive for
the Maves murder. Such an inference is permissible when not an
appeal to passion. State v. Jones, 355 N.C. at 135, 558 S.E.2d
at 108.
Finally, defendant argues that the prosecutor
improperly appealed to the prejudices of the jury when he argued:
Folks, right now you know he had his
hand on that knife. Right now you know he
put that knife in her skull. Right now you
know he stabbed her eight times. And if that
ain't an attempt to kill, if that ain't first
degree murder, then cut him loose. Let him
back out at Wrightsville Beach, let him back
out at South College Road. If that's not
first degree murder, let him go, but I'll
tell you one thing, if you're a woman, if
you're alone, if you're defenseless, don't be
where he is.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: If you don't know now
he's a murderer, then cut him loose. The law
says if you are convinced, beyond a
reasonable doubt, you will know. And if you
know right now, you don't need to talk about
it any more.
The State concedes that it cannot find any authority to
suggest that this argument, to the effect that an acquittal would
put others at risk, was proper. We agree that the court erred in
overruling defendant's objection. However, in light of the
evidence of defendant's guilt, the fact that the improper comment
consisted of but a single sentence, and the prosecutor's
immediate abandonment of that line of argument, we do not hold
the error to be prejudicial. This assignment of error is
overruled.
SENTENCING ISSUES
Defendant argues that the trial court's instruction as
to the (e)(11) aggravating circumstance was clearly erroneous.
N.C.G.S. § 15A-2000(e) provides in pertinent part that
[a]ggravating circumstances which may be
considered shall be limited to the following:
. . . .
(11) 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). Here, the court instructed the jury
as follows:
The second possible aggravating
circumstance which you may consider is number
two. Was this murder part of a course of
conduct in which the defendant engaged, and
did that course of conduct include the
commission by the defendant of other crimes
of violence against another person or
persons? If you find from the evidence, and
beyond a reasonable doubt, that the
defendant, together with others, murderedLisa Maves, you would find this aggravating
circumstance and would so indicate by having
your foreperson write “yes” in the space
after this aggravating circumstance on the
Issues and Recommendation form. If you do
not so find, or have a reasonable doubt as to
one or more of these things, you would not
find this aggravating circumstance and would
so indicate by having your foreperson write
“no” in that space.
This instruction is erroneous because it allowed the
jury to find the aggravating circumstance without also finding
that the murder of Fetter was part of a course of conduct that
included the earlier murder of Maves. The mere fact that one
murder followed the other does not establish a course of conduct.
Consequently, the instruction improperly relieved the burden on
the State to prove each and every element of the (e)(11)
aggravating circumstance. See State v. Nobles, 350 N.C. 483,
516, 515 S.E.2d 885, 905 (1999).
Because defendant did not object to this instruction,
we review for plain error. “In order to rise to the level of
plain error, the error in the trial court's instructions must be
so fundamental that (i) absent the error, the jury probably would
have reached a different verdict; or (ii) the error would
constitute a miscarriage of justice if not corrected.” State v.
Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert.
denied, 522 U.S. 1126, 140 L. Ed. 2d 132 (1998). We have noted
that events are more likely to be part of a course of conduct if
they are close together in time. State v. Cummings, 332 N.C.
487, 510, 422 S.E.2d 692, 705 (1992). Here, the Fetter murder
was committed seven weeks after the Maves murder. The two
murders were similar in some respects but different in others. The State presented evidence that defendant's motive for killing
Fetter was to silence her about the Maves murder. Although we
have determined above that the evidence of the Maves murder was
properly admitted, we remain advertent to the possibility that
knowledge of this earlier murder could have an inflammatory
effect on the jury. The trial court's cautionary instructions
when evidence of the Maves murder was admitted during the guilt-
innocence phase of the trial prevented that evidence from being
unfairly prejudicial. By contrast, the instruction given during
the sentencing proceeding allowed the jury to find the course of
conduct aggravating circumstance solely on the basis that
defendant had committed another murder, effectively negating the
cautionary instructions given during the guilt-innocence phase.
Because the sentencing instruction allowed the jury to disregard
both the potentially attenuating effects of the passage of time
on an alleged course of conduct and the differences between the
two murders, while relieving the burden on the State of proving
the required link between the two murders, we are satisfied that
the instruction constituted plain error. Accordingly, we reverse
defendant's sentence of death and remand to the trial court for a
new sentencing proceeding.
Defendant has raised a number of additional issues
related to sentencing. We address the single issue that we
believe may recur in the same form at the resentencing hearing.
Defendant argues that the trial court erred in
instructing the jury as to both aggravating circumstance (e)(4),
“[t]he capital felony was committed for the purpose of avoidingor preventing a lawful arrest or effecting an escape from
custody,” N.C.G.S. § 15A-2000(e)(4), and aggravating circumstance
(e)(11), “[t]he 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). Although we have held that a jury may not find
two aggravating circumstances based upon the same evidence, State
v. Goodman, 298 N.C. 1, 28-29, 257 S.E.2d 569, 587 (1979), we
have also held that overlapping evidence may support more than
one aggravating circumstance when there is also separate
substantial evidence to support each circumstance, State v.
Parker, 350 N.C. 411, 442, 516 S.E.2d 106, 126-27 (1999), cert.
denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000).
First, we must determine whether sufficient evidence
existed to support submission of each aggravating circumstance to
the jury. Defendant's own statements provided sufficient
evidence to support the (e)(4) circumstance. Although the
murders here were several weeks apart, the (e)(11) circumstance
was adequately supported by evidence that each victim had been
stabbed in the head, that defendant had made efforts to hide each
victim's body, and that defendant had participated with others in
each murder. See State v. Cummings, 346 N.C. 291, 329, 488
S.E.2d 550, 572 (1997) (“In determining whether the evidence
tends to show that another crime and the crime for which
defendant is being sentenced were part of a course of conduct,
the trial court must consider a number of factors, including thetemporal proximity of the events to one another, a recurrent
modus operandi, and motivation by the same reasons.”), cert.
denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998).
We must next determine whether this evidence is
sufficiently substantial and separate to support submission of
each aggravating circumstance. We note that the (e)(4)
circumstance focuses on defendant's motive for killing Fetter,
while the (e)(11) circumstance required the jury to review the
objective facts of the two murders to determine whether the
offenses constituted a course of conduct. This Court has held
that a defendant's motive appropriately may be considered at
sentencing. State v. Oliver, 302 N.C. 28, 62, 274 S.E.2d 183,
204 (1981). In State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788
(1981), we cited Oliver when a murder defendant argued that a
trial court improperly submitted the two aggravating
circumstances that the murder was committed for the purpose of
resisting lawful arrest, N.C.G.S. § 15A-2000(e)(4), and that the
murder was committed against a law enforcement officer who was
engaged in the performance of his lawful duties, N.C.G.S. §
15A-2000(e)(8). State v. Hutchins, 303 N.C. at 354-55, 279
S.E.2d at 808-09.
Of the two aggravating circumstances
challenged by defendant here as purportedly
being based upon the same evidence, one of
the aggravating circumstances looks to the
underlying factual basis of defendant's
crime, the other to defendant's subjective
motivation for his act. The aggravating
circumstance that the murder was committed
against an officer engaged in the performance
of his lawful duties involved the
consideration of the factual circumstances of
defendant's crime. The aggravatingcircumstance that the murder was for the
purpose of avoiding or preventing a lawful
arrest forced the jury to weigh in the
balance defendant's motivation in pursuing
his course of conduct. There was no error in
submitting both of these aggravating
circumstances to the jury.
Id. at 355, 279 S.E.2d at 809.
We believe that Hutchins controls our analysis of this
issue. As in Hutchins, each circumstance here was offered for a
different purpose, and although the evidence supporting the
circumstances does overlap to a degree, nevertheless the State
presented separate and substantial evidence to support each
circumstance individually. This assignment of error is
overruled.
The remaining sentencing issues argued by defendant
pertain to the particular instructions provided to the sentencing
jury. Because we do not foresee that these particular issues
will arise in the same form on resentencing, we do not believe it
necessary to address these issues in this opinion.
In conclusion, we find no prejudicial error in the
guilt-innocence phase of defendant's capital trial, but we vacate
the death sentence and remand for a new capital sentencing
proceeding.
NO PREJUDICIAL ERROR IN GUILT-INNOCENCE PHASE; DEATH
SENTENCE VACATED; REMANDED FOR NEW CAPITAL SENTENCING PROCEEDING.
Footnote: 1 Although it appears that the speakers may not be correctly
identified in the following exchange, we have quoted from the
official trial transcript.
Footnote: 2 We have duplicated the punctuation as set out in the trial
transcript. We observe from the context that alternative
punctuation might more accurately reflect those portions of the
prosecutor's words where he was quoting Walker's statement.
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