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STATE OF NORTH CAROLINA
v.
TED ANTHONY PREVATTE
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
a judgment imposing a sentence of death entered by Helms, J., on
22 February 1999 in Superior Court, Stanly County, upon a jury
verdict finding defendant guilty of first-degree murder. On
19 July 2001, the Supreme Court allowed defendant's motion to
bypass the Court of Appeals as to his appeal of additional
judgments. Heard in the Supreme Court 11 March 2002.
Roy Cooper, Attorney General, by William B. Crumpler
and Robert C. Montgomery, Assistant Attorneys General,
for the State.
Center for Death Penalty Litigation, by Kenneth Rose,
for defendant-appellant.
WAINWRIGHT, Justice.
In 1995, Ted Anthony Prevatte (defendant) was sentenced
to death after being found guilty of first-degree murder and two
counts of second-degree kidnapping. State v. Prevatte, 346 N.C.
162, 484 S.E.2d 377 (1997). Following defendant's appeal from
these convictions, this Court granted defendant a new trial. Id.
On 17 February 1999, at his second trial, the jury
found defendant guilty of first-degree murder and two counts of
kidnapping. The first-degree murder conviction was based on the
theories of malice, premeditation and deliberation, and the
felony murder rule. The jury recommended and the trial judgeimposed a sentence of death for the murder conviction and
consecutive terms of imprisonment of thirty years each for the
kidnapping convictions.
The record reveals the following pertinent facts. The
thirty-two-year-old victim (Cindy McIntyre) was married with two
children (Michael and Matthew). She and her husband, Mike, were
estranged but trying to reconcile. The victim and defendant
attended the same church, sang together in the choir, and had
been dating for about a year. Defendant lived with his mother
across the street from the victim.
On 1 June 1993, when the victim and her husband saw
each other, the victim's husband gave her a rose, kissed her, and
told her he loved her. Later that same day, the victim and her
son Matthew were at home when defendant came in with a present
for Matthew. As Matthew was opening the present, his mother
said, “Oh my God.” Matthew turned around and saw defendant
pointing a gun at his mother. Defendant had borrowed a gun from
his cousin that afternoon.
When Matthew saw defendant with the gun, Matthew jumped
up, and defendant pointed the gun at him. Defendant took the
victim and Matthew to the bedroom and made them get down on their
knees. Defendant then hit and kicked the victim. Defendant
pointed the gun at Matthew's head and said if the victim did not
shut up, defendant would shoot Matthew.
Defendant grabbed Matthew and locked him in a bathroom
down the hall from the bedroom. Defendant briefly left the house
but shortly returned and brought the victim out of the house,with her hands bound behind her back. Defendant had his hands on
the victim's neck and shoulder area. Defendant forced the victim
into a car, pulled the victim back out of the car, and then
struck the victim three to four times and slammed the victim's
head into the car. The victim's hands remained bound behind her
back. Defendant next reached into the car and pulled out a
handgun. When the victim tried to run away, defendant held the
gun with both hands, aimed, and fired more than once. Defendant
left immediately after the last shot.
An autopsy of the victim's body revealed she suffered
three gunshot wounds. Each bullet passed through the victim's
body. One bullet went through the middle of the victim's back
and completely destroyed her aorta and heart. Massive bleeding
occurred in the chest cavity. These wounds caused the victim's
death.
Inside the master bedroom of the victim's house,
investigators found a nylon rope tied to a bed frame and a roll
of duct tape on the floor. The roll of duct tape was consistent
with the duct tape used to bind the victim's hands.
Prior to the murder, the victim told a witness she was
afraid of defendant because he knew she was reuniting with her
husband. The victim said she was afraid defendant would hurt
her, her children, or her husband. Witnesses also heard
defendant say he would kill the victim if he could get away with
it and he “[felt] like killing her.”
Before analyzing defendant's arguments, we first note
that defendant's two trial attorneys in this case are the sameattorneys who represented defendant in his 1995 capital trial for
this murder.
We also note defendant presented an insanity defense at
trial. Two defense experts expressed opinions that defendant had
a paranoid personality disorder and was insane at the time of the
shooting. The State offered rebuttal evidence that on the day of
the murders, defendant was observed acting in a calm, friendly
manner. The State's expert testified that on the day of the
murders, defendant was able to understand the nature and quality
of his actions as well as the difference between right and wrong.
PRE-TRIAL ISSUES
We first address defendant's assignment of error that
his vicinage rights were violated in that venue should not have
been changed from Anson County to Stanly County because the court
lacked statutory authority to change venue, the court lacked
inherent authority to change venue without giving an adequate
reason, and defendant did not waive his right to venue.
Defendant's argument is misplaced.
“The vicinage concept requires that the jurors be
selected from a geographical district that includes the locality
of the commission of the crime.” 4 Wayne R. LaFave and Jerold H.
Israel, Criminal Procedure § 16.1(b), at 462 (2d ed. 1999).
“Technically, 'vicinage' means neighborhood, and 'vicinage of the
jury' meant jury of the neighborhood or, in medieval England,
jury of the county.” Williams v. Florida, 399 U.S. 78, 93 n.35,
26 L. Ed. 2d 446, 456, n.35 (1970). First, defendant contends he has a right to be tried in
the county in which he was charged, namely, Anson County. The
general rule in regard to venue is the prosecution must be in the
county where the offense is committed. N.C.G.S. § 15A-131(c)
(2001). However, defendant's contention ignores the facts of
this case.
On 13 July 1998, defendant filed his motion for change
of venue alleging that “there exists in the County of Anson . . .
so great a prejudice against the defendant that he cannot obtain
a fair and impartial trial.” In support of his motion, defendant
further alleged:
1. At the time of the incident alleged
and continuing regularly thereafter, there
was substantial pretrial publicity that
created so great a prejudice against the
defendant that he cannot obtain a fair and
impartial trial in Anson County.
2. There is a reasonable likelihood
that a fair re-trial will be prevented.
3. The transcript of the prior trial
showing over 1800 pages of jury voir dire
purports that the defendant cannot receive a
fair and impartial re-trial in Anson County.
As a result of the foregoing, defendant “respectfully
move[d] the Court to grant his motion for change of venue.”
On that same date, the trial court was hearing other
motions in this case while defendant and both of his attorneys
were present in court. The trial court gave defendant the
opportunity to hear his motion for change of venue that day.
Defendant was informed that his case was coming up for trial on
27 July 1998, which was two weeks away. Defendant, through hisattorneys, asked that the motion for change of venue not be heard
at that time.
On 25 July 1998, defendant filed a handwritten,
notarized motion to dismiss counsel which provided:
[O]n Monday, July 13, 1998 defendant was
caused to appear in Superior Court in Anson
County for pretrial motions on the part of
the defense which defendant had not been
given any prior knowledge of said pretrial
motions hearing, of which one motion --
motion for change of venue -- was favored by
the prosecution in regard to the change of
location -- Standly [sic] County -- which
defense counsel told defendant was in his
favor (in 1994 before defendant's first trial
at a special session of Superior Court,
defense counsel, McSheehan and Painter
disagreed with defendant on a change of venue
saying that if a change of venue was granted
by the court, that the D.A. would get to pick
the county for the trial to be held in and
that the D.A. Honeycutt would pick [Stanly
County] and Stanly County was “more
bloodthirsty than Anson County.” And also at
the July 13, 1998, pretrial hearing defense
counsel Mr. McSheehan and Mr. Painter both
lied to defendant in trying to have defendant
believe that he was going to trial in two
weeks on July 27, 1998, to try and trick
defendant into agreeing to their pretrial
motion for a change of venue while well
knowing, from having talk[ed] to the D.A.,
that the July 27, 1998, trial date had
already been scheduled for another murder
case of State of North Carolina v. Chris
Holden.
It should be noted that defendant had a history of
writing letters to dismiss his counsel. On 13 October 1997, the
trial court had held a hearing on defendant's motion to reconsider
appointment of one of his attorneys. At that hearing, defendant
asked the court to allow him to withdraw his motion requesting
that Mr. Painter be removed as one of his appointed attorneys.
The trial court allowed defendant's motion to withdraw. On 24 August 1998, the trial court held a hearing on
defendant's motion to dismiss counsel. The following lengthy
colloquy took place:
THE COURT: This is your motion,
Mr. Prevatte; is that correct?
MR. PREVATTE: Yes, sir.
THE COURT: All right. Do you want to
offer any evidence, Mr. Prevatte?
. . . .
MR. PREVATTE: . . . I just don't feel
comfortable with these two gentlemen anymore.
They tell me one thing, and then on down the
road, they tell me something totally
contradicts what they told me the first time.
There's evidence out there to prove that
State's main witness Jeffrey Burr lied. And
they won't get it.
They won't petition the court for the
things I need, like a private investigator to
check it out, and go get it. And they just
keep me confused. They -- they -- they said
they were ready to go to court in July when I
went down to Anson County. And they tried to
trick me into taking a change of venue in
Stanly County, which is even bad or even
worse than having it tried in Union County.
. . . .
MR. PREVATTE: . . . And then the
prosecution was in agreement with it.
Anything the prosecution is in agreement with
in my case, isn't in my best interest. They
just don't do what I tell them. I needed
court -- to petition the court to get a
private investigator to check out the
evidence that's out there.
THE COURT: They don't do what you tell
them to do?
MR. PREVATTE: Sir?
THE COURT: They don't do what you tell
them to do?
MR. PREVATTE: No, sir. That's not it.
THE COURT: What is it?
MR. PREVATTE: They are my attorneys.
But it's also my case.
THE COURT: I understand that.
MR. PREVATTE: And I know what's -- some
of the things that need to be done. I've
told them, and they won't do it. And it all
-- the law -- the law states that when a
defendant and his counsel come[] to an
impasse, that the defendant's desires
override those of his counsel. I've read
that in the North Carolina laws and
procedures.
THE COURT: Anything you want to tell me
about it?
MR. PAINTER [defense counsel]: Not
unless he waives attorney/client privilege.
MR. McSHEEHAN [defense counsel]: Not
unless he waives attorney/client privilege,
Judge. I'm not allowed to say anything.
. . . .
THE COURT: Well, what's your position
as to whether or not these attorneys ought to
remain in the case, whether or not some other
attorney ought to be in it?
MR. GWYN [prosecutor]: Well, Your
Honor, the defendant doesn't have the right
to pick and choose whatever counsel he
prefers to have or is more comfortable to
have. We really feel, quite frankly, Your
Honor, that the purpose of him filing this
motion is simply for the purpose of delay.
One alternative that occurs to the State is
for the appointment of standby counsel in the
form of Mr. Painter and Mr. McSheehan. Other
than that, we take no position. We just want
the court to be aware of our belief that
Mr. Prevatte's motion in front of you is
simply for the purpose of delaying and
putting off the inevitable trial.
MR. PREVATTE: That's not so, Your
Honor, with all due respect to the court. Myattorneys, they -- like I said, I just can't
trust them no more. I know what's good for
me and what's not good for me. And they --
they half listen to me. They half -- it's
not to put it off. But how can you be ready
to go to trial, when you haven't done some of
the things that I specifically asked them to
do? And then they try to trick me into
agreeing to motions in Stanly County saying I
was going to go to court in July, knowing
full well that another inmate had been
scheduled to go to court in July ahead of me.
When I first -- first time we tried to
get a change of venue out of Anson County,
they said it will most likely be in Stanly
County. And you don't want it there because
the people in Stanly County is more blood
thirsty than the people in Anson County. And
now this time, they come back and say great,
we got a change of venue, we're going to
Stanly County. And the D.A. has agreed to
it. I said, hold it.
THE COURT: Have you agreed to that?
MR. HONEYCUTT [prosecutor]: No, sir.
The only thing -- discussion that I've had
about the change of venue, is I asked if they
were seriously going to contest it, that our
position was going to be that the only court
facility with a docket light enough to move
the case was Stanly County. I also pointed
out that the -- that the defendant can get a
quicker trial in Anson County. But I told
them I didn't object on the State, they can
be tried in any county they wanted to.
MR. PREVATTE: Your Honor, I asked my
counsel to do things for back-up the change
of venue outside the twentieth jurisdiction.
Because I can't get a fair trial in Anson
County, Richmond County, Stanly County or
Monroe, due to the publicity. Not only in
those counties, but out of Charlotte and the
television news. And they won't do it. Then
they come to me and say, we got you a change
to Stanly County. There's going to be a good
Judge there.
I told them, you said it was more
thirsty -- more blood thirsty in Stanly
County than Anson County. Yeah, but they got
a good Judge there. Like I told them, theycould have the best Judge in the world. If
that county had been prejudiced against me
through news and other things, word of mouth
and all, it would be just like Wadesboro,
Anson County.
They -- I've tried about getting
witnesses to testify for me, expert
witnesses. They keep telling me that the one
said he don't remember me, and he don't want
to come up here. I don't believe that. He
-- he's a psychiatrist. And he treated me
for eleven months in Central State Hospital
in Milledgeville, Georgia on a 24-hour basis.
He, more than anybody, knows my mind.
And it's -- you know, they -- they try
to say we was going to court in July. And
they hadn't done all these things. And then
I found out that the other guy had already
been scheduled. As soon as the hearing was
over, and I didn't want to go over these
motions, Mr. Painter comes out and said,
they're going to try so-and-so on the 27th.
They knew that all along. They're playing
mind games with me, Your Honor. And this is
my life. I'm in a capital murder case.
THE COURT: What's your -- what are you
requesting in the case?
MR. PREVATTE: As what?
THE COURT: What are you asking me to
do?
MR. PREVATTE: I want new counsel. I
would appreciate that.
THE COURT: State care to be heard on
that?
MR. GWYN: No, sir.
THE COURT: Have no opinion one way or
the other?
MR. HONEYCUTT: Yes, sir. We say that
it's unfair to the State to drag us out now.
And as to whether or not this case was to be
tried in July, Mr. Painter and Mr. McSheehan
were informed by my office that this case was
on the calendar in July as the back-up case
in the event the first murder case that wastried down there -- and I believe it was
before Your Honor -- broke down. So this --
we were targeting this case for trial in
July. Mr. Painter and Mr. McSheehan were
made aware of that and kept informed of that.
MR. PREVATTE: Your Honor, all due
respect to the court again. If they -- if I
was scheduled to be tried in July, if the
other person wasn't, then my attorneys were
totally unprepared. Because they hadn't done
the things they needed to do.
THE COURT: Well, hadn't they already
prepared your case one time before?
MR. PREVATTE: Yeah.
THE COURT: What else did they need to
do then?
MR. PREVATTE: There's new evidence.
There's not new evidence, but evidence that's
been out there to prove that the State's main
witness lied and made a deal with the D.A. to
get 18 felonies dropped a month right after I
was convicted. Not only did Mr. Honeycutt
lie to the defense, he lied to the court and
said he hadn't made a deal with the State
witness.
THE COURT: Well, what effort could they
have made to show this? What are you saying
your lawyers could have done that you don't
already have?
MR. PREVATTE: Well, I think, Your Honor
--
THE COURT: Didn't they attempt to ask
the witness about that during the first
trial? And the Judge didn't let them; is
that right?
MR. PREVATTE: That -- that -- that's
right. But I thought --
THE COURT: And isn't that why your case
got reversed?
MR. PREVATTE: Yes, sir. But I'm also
saying there's other evidence there to show
that he lied. And that would change the
whole, all the way around, in my opinion. But all they want, they say, well, what if
they find DNA.
THE COURT: What do you say is out
there?
MR. PREVATTE: For that incident, Your
Honor, I'd like to ask a full hearing in your
chambers outside the hearing of the
prosecution.
THE COURT: Well, do you all agree what
he says cannot be used against him?
MR. HONEYCUTT: No, sir. We will not
agree to that.
THE COURT: You won't agree to that?
MR. HONEYCUTT: At this point, he still
has two lawyers representing him.
THE COURT: Well, that's the reason your
case got reversed; is that right?
MR. PREVATTE: No, sir. The case got
reversed for lack of due process, which --
THE COURT: My understanding is the case
got reversed because the court did not allow
cross examination of whether or not some --
MR. McSHEEHAN: Davis. Judge, we were
not allowed to cross examine the witness in
front of the jury to probe him about any deal
he may have or may not have had on the State,
and let the jury pass on his credibility, and
credibility questions asked and his responses
thereto. And that's the Lass V Davis. And
that's why it got reversed. The other 157
errors cited and passed on them, and they
said they would not occur in the new trial.
THE COURT: All right. Mr. Painter, do
you feel like you can continue to represent
him in light of what's transpired?
MR. PAINTER: Your Honor, I have no
animosity or no bad feelings toward
Mr. Prevatte. I'm here at the court's
direction to represent him as fully as my
ability allows me to do so. And I would
continue to represent him in the manner which
I think under the law I am -- I should berepresenting him. I will explain to him and
talk to him any concerns he has. If he wants
us to do something that I feel is not in his
best interest, I think I, as a lawyer, have a
duty to make sure that I don't let him
dictate something that is going to put him in
harm's way.
And I think there's in fact a recent
North Carolina Supreme Court case that
basically says they're not to second-guess
lawyers on post conviction relief where the
defendant says, my lawyer didn't do so and
so, because the defendant, first of all,
didn't go to law school. Second of all, the
lawyer in his expertise in being in the
courtroom under fire, 12 people sitting in
the box in a capital case is in a better
position to judge what tactics to take than
the Supreme Court sitting in Raleigh
18 months later.
THE COURT: Mr. McSheehan.
MR. McSHEEHAN: Judge, I have no problem
continuing representing Mr. Prevatte or
continuing to represent Mr. Prevatte if the
court so desires. We've got a lot of hours
invested in this case. New counsel would
take a long time for them to catch up, I'm
sure. I've told him regardless of how the
court rules, we are here if he needs us. And
we were there for eight weeks the last time.
We made trips to Arkansas, Tennessee. We
made trips to Florida -- I mean to Georgia on
his behalf. And --
THE COURT: Have you considered this
psychiatrist or whomever he's talking about
from some other state?
MR. PAINTER: We went down there and
talked with him, took a 24-hour trip back on
April the 12th with -- where we sat on the
tarmac, got the plane cancelled, and drove
back from Atlanta. It was a 24-hour trip
from start to finish. And went down there
and spent about an hour with the
psychiatrist.
THE COURT: Was he called at trial?
MR. PAINTER: I'm sorry?
THE COURT: Was he called at trial?
MR. PAINTER: No, not last time. Not
the first trial, no, sir.
MR. McSHEEHAN: This is the psychiatrist
that saw him in an eleven month period at
state mental hospital in Milledgeville,
Georgia.
THE COURT: Was it your opinion that it
would not be to his benefit to call him to
trial?
MR. PAINTER: Man had no recollection at
all of having treated Mr. Prevatte.
MR. McSHEEHAN: And he said he would
check his records, Judge. And if he found
records that were different, he would call
us. We'd be glad to subpoena him if the
court would allow us the expense of the trip,
bring him up. But --
THE COURT: Given the fact you did what
he's requested that you did previously; is
that correct?
MR. PAINTER: On April 12th, yes, sir.
We went down there and talked to the
psychiatrist to prepare him for coming up
here to trial.
. . . .
THE COURT: But any agreement about the
transfer of this case to Stanly County?
MR. PAINTER: There was a discussion
between us and the D.A. and we broached it
with Mr. Prevatte.
THE COURT: Been no agreement about that
one way or the other?
MR. PAINTER: No. There was discussion.
MR. PREVATTE: Your Honor, if I may. I
have no animosity against these attorneys. I
just -- if I could speak to you in chambers,
you would understand why that I told -- asked
them to do certain things, they haven't done
that's in regard to my case and in my best
interest. They went down there and talked tothis psychiatrist. They said he don't
remember nothing about me. I find that hard
to believe. I mean, I don't -- he may have
said that. I'm not saying they lied.
. . . .
THE COURT: You hope to get in touch
with him again?
MR. PAINTER: Yes, sir. We'll be glad
to take the records down there. We'll be
glad to take a photograph of him. We'll be
glad to take whatever criminal records are
available made to peak his memory or cause
his memory to fire, hopefully, so he'll
understand.
THE COURT: How much time have you spent
preparing for this case?
MR. McSHEEHAN: First time?
MR. PAINTER: 637 hours is what we had
in the last case, first time we tried it.
MR. McSHEEHAN: Over 600 hours counting
trial?
MR. PAINTER: Yes, sir. It was six
witnesses for trial.
MR. McSHEEHAN: Eight witnesses.
MR. PAINTER: Eight witnesses.
THE COURT: So you spent over 300, 350
hours investigating everything?
MR. PAINTER: We went to Arkansas.
. . . .
THE COURT: Well, knowing you gentlemen
as I do and your -- shall we call it
propensity to investigate I've seen in the
past, definite for me to believe that you
wouldn't have done everything that's
necessary to provide the defense for this
man.
MR. PREVATTE: Your Honor, that was in
the last trial. I'm speaking of the trial
from beginning now. I've asked them topetition the court for funds to hire a
private investigator to get this evidence.
Up to the time in July when we talked and
said, you might be going to court, they
hadn't done it. Their reasons for not
wanting that evidence brought out is totally
ridiculous. The reasons I can't say in front
of here because of the prosecution. Go there
in Your Honor's chambers, I could tell you.
It's a parody to my case that, you know, to
help me. And I don't want the prosecution to
have any knowledge of it.
THE COURT: About you wanting to have a
private investigator?
MR. PREVATTE: Sir?
THE COURT: About why you should have a
private investigator?
MR. PREVATTE: I want to petition the
court to get a private investigator to look
for this evidence, to find it.
THE COURT: It's not automatic. Do you
understand that?
MR. PREVATTE: Yes, sir, I know that.
But they didn't even petition for it. In my
opinion, they didn't even try. Your Honor,
I'm on trial for my life. And I need all the
support that I can get from my attorneys. I
know these attorneys are good people, good
men, good attorneys. But I know a little bit
about my case that they don't, and --
THE COURT: Let me ask you something.
Did they do everything you thought they
should have done in the first trial?
MR. PREVATTE: No, sir. And I ended up
with the death penalty.
THE COURT: All right.
MR. HONEYCUTT: I would just like the
court to inquire of defendant if he's
attempting to fire his attorneys. Is that
issue before the court? Because if I
understand the law, he has a right to fire
his lawyers. But I also understand my best
recollection with the appellate decisions
are, indigent defendant does not have a rightto fire his attorneys just because he doesn't
think he's getting along with them. See
that's a -- there's a much more objective
issue before the court other than the clash
of personalities.
THE COURT: I understand that.
MR. HONEYCUTT: But I'd like the record
to reflect whether or not he's attempting to
fire his lawyer.
MR. PREVATTE: Your Honor, the motion
was filed to dismiss counsel. I know no
lawyer likes to face that kind of a motion.
And like I said, I have nothing against these
two gentlemen, other than some things that
needed to be brought to the court's attention
that could have kept me from getting the
death penalty, or even convicted of, found
guilty the first time. They've ignored it.
They -- I just want them to do like I ask in
this situation, because I know what I'm
talking about.
THE COURT: In other words, you just
want them to do everything you tell them to
do?
MR. PREVATTE: No, sir. I'm not an
attorney. I'll be the first to admit that.
I don't -- I need a -- I need counsel. But
I'm saying, I don't need these two counsel.
THE COURT: You just want substitute
counsel; is that right?
MR. PREVATTE: Court appointed.
THE COURT: You're not asking to dismiss
all attorneys, you just want a substitute
attorneys?
MR. PREVATTE: No, sir. I was wanting
that the court appoint me new counsel.
THE COURT: That's what I'm saying. You
want me to dismiss these two gentlemen and
appoint two more; is that right?
MR. PREVATTE: Yes.
THE COURT: Anybody care to be heard
further? All right, motion is denied. . . .
MR. GWYN: Your Honor, while we're all
here, we also have their motion for a change
of venue.
. . . .
MR. McSHEEHAN: We haven't asked to put
it on, Judge. . . .
. . . .
MR. HONEYCUTT: Well, we need to hear
the motion for change of venue, because I'm
trying to get a session set.
. . . .
THE COURT: Well, they didn't know if
they were going to be his attorneys until
after today or not. So I'm going to set it
for the next term in Anson County.
In an order entered on 11 September 1998, the trial
court calendared this case to be tried at the 12 October 1998
term in Anson County. The trial court found that the pending
motions, such as the change of venue, were not heard on this day
because of the illness of one of defendant's attorneys. The
trial court then calendared all pending motions in this case to
be heard at the 14 September 1998 term.
On 16 October 1998, defendant filed a motion for funds
to conduct a survey, asking the court to enter an order approving
funds to hire someone to conduct a survey of a cross-section of
the citizens of Anson, Union, Stanly, and Richmond counties to
determine whether defendant could receive a fair trial in the
twentieth prosecutorial district. Defendant alluded to the fact
that he might argue for a change of venue to remove his case to a
county outside of the twentieth prosecutorial district due to
publicity. On 19 October 1998, a hearing was held in Anson County
on defendant's motion for change of venue and motion for funds to
conduct a survey. Defendant and both of his attorneys were
present in the courtroom.
At the hearing, defendant's counsel introduced the
transcript of the jury voir dire during the first trial. As a
result, the following colloquy took place:
THE COURT: What page do you want me to
look at?
MR. McSHEEHAN [defense counsel]: Judge,
you'll find them highlighted as you go
through, as you look at this. Primarily what
our argument is that out of 100 people
summoned that came in to sit on the jury, 85
were excused. . . . We're asking to
introduce the transcript to show to the Court
that out of the 100 plus or so jurors that
were summoned, over 85 of them were excused
and of those excused more than half of those
excused, especially those excused that we
were able to either excuse by cause or take
them off peremptorily because they had an
opinion about this particular case. That's
as good a survey on an independent basis as
we could possibly ask to find that he can't
get a fair and impartial trial in Anson
County.
The District Attorney, the last time we
had another motion that Mr. Prevatte had
filed, said that he didn't object to
transferring it to any county in the 20th
Judicial District. He said that in open
court.
. . . .
THE COURT: What is your position about
transferring?
MR. HONEYCUTT [prosecutor]: First of
all, we say they have not met their burden of
proof.
THE COURT: I understand.
MR. HONEYCUTT: Adequate facilities and
a docket that's light enough in this district
is in [Stanly] County, and they rejected that
the last time we discussed this.
. . . .
THE COURT: Is there any objection to
moving it to a county in the district that
can handle it facility-wise and scheduling-
wise?
MR. HONEYCUTT: I just want to get the
case tried. I want it in front of 12 people
so we can try it.
THE COURT: I understand. Jury
selection might go faster if it were in a
separate county.
MR. McSHEEHAN: Yes, sir. It took a
little over two weeks to get the jury the
last time.
. . . .
MR. McSHEEHAN: And we didn't take as
much time with the jury, perhaps as the State
did, based on the questions.
Judge, we ask to move under statute
[15A-957] that the court has the discretion
to move it to another county in the same
prosectorial district as defined in [statute
7A-60] or to another county in an adjoining
district as defined in [7A-60].
Judge, for the convenience, for the
ability to have Mr. Prevatte at hand, the
best jail facility that we have is in Union
County.
THE COURT: We're swamped with cases as
it is.
MR. McSHEEHAN: Well, I don't want to
make an argument that somebody ought to
change the venue on some of those, but
regardless -- well, that's --
THE COURT: We don't have enough
courtrooms now to accommodate all the courts.
MR. McSHEEHAN: This Court may remember
that in that discussion that we had when
Mr. Honeycutt said he didn't mind any of the
districts, we were asked if we wanted to move
it to [Stanly] and we said no -- Mr. Prevatte
said no. I know Richmond and Union are
within our district, or any other choice that
the Court might deem appropriate in moving
it.
. . . .
THE COURT: How long has it been since
it was tried the first time?
MR. McSHEEHAN: We tried it, I believe,
in January of 1997, so it will be -- it will
be four years in January, Judge. Well, so
we're asking you to change the venue and I'll
stop with this.
. . . .
MR. HONEYCUTT: I would like to make a
couple of brief comments. First of all,
Judge, as I recall when we tried this case in
January of 1995, the publicity was not
extensive. There was very low coverage from
the Charlotte press, outside of him having
been previously convicted of a first-degree
murder and been sentenced to death and that
was -- and then he was paroled. That was
more the angle.
Most importantly as I recall reading the
newspaper articles that did come out,
especially in the Anson newspaper, it only
comes out once a week, is that correct? Once
a week. The coverage was factual. The
coverage -- the things that were reported
were things that happened in the courtroom.
There's been no sensationalism of the case.
There was no misrepresentation of the
evidence that was presented in the case.
We contend that they've not even begun
to meet a pattern which would suggest that
they could not get a fair trial in Anson
County. As for the jurors that were removed
for cause, if I do recall properly, it did
take almost two weeks to pick a jury, but
there were many, many jurors who did not
believe in the death penalty and who were not
able to qualify. . . .
. . . .
. . . We contend they have not made a
case for moving the case out of Anson County,
but if the Court wants to move it, you have
the discretion to do that. We ask that it
remain in the district. I spent all the time
in Hampton Inns this year that I would like
to. I would like very much to get this case
tried as soon as possible. We've postponed
it from last spring for the defense
attorneys, and then this October postponed it
for the defense attorneys. It's time -- it's
time for this man to have to face the bar of
justice.
. . . .
THE COURT: As to the motion to dismiss,
it's my opinion that the showing does not
meet a level necessary to require removal to
another county as set forth in the State v
Barns, and some other fairly recent
decisions. In my discretion I'm going to
move it to [Stanly] County if there's no
objection from the State.
MR. GWYN [prosecutor]: No objection.
THE COURT: We'll find people there who
have not heard much of anything about the
case and jury selection will probably go
faster being in a different county instead of
the one that we're presently in.
Since there's no argument from the State
as to that point and are agreeable to it, in
my discretion I'm going to allow the motion
to move it there, not because a matter of law
necessitates it but because of the consent
expressed by the State.
As a result of the 19 October 1998 hearing, the trial
court entered its order on 1 December 1998 denying defendant's
motion for funds to conduct a jury survey, but granting
defendant's motion for a change of venue and moved the case to
Stanly County. The court found the following facts:
1. That [throughout] the hearing of
defendant's motions, the defendant waspersonally present in open court and
accompanied at all times by both his court
appointed attorneys, David McSheehan and John
Painter.
2. That upon consideration of the
motions file[d], evidence presented, and
arguments presented, or counsel the court
finds that the defendant failed to present a
sufficient showing of prejudice requiring the
court to grant either the defendant's motion
for change of venue or for funds to conduct a
jury survey.
. . . .
4. In its discretion, however, and at
the request of the defendant the court hereby
grants the defendant's motion for a change of
venue.
Next, defendant contends the trial court lacked the
statutory authority and the inherent authority to change venue
without giving an adequate reason. The statute for a change of
venue provides:
If, upon motion of the defendant, the
court determines that there exists in the
county in which the prosecution is pending so
great a prejudice against the defendant that
he cannot obtain a fair and impartial trial,
the court must either:
(1) Transfer the proceeding to
another county in the
prosecutorial district as
defined in G.S. 7A-60 or to
another county in an adjoining
prosecutorial district as
defined in G.S. 7A-60, or
(2) Order a special venire under
the terms of G.S. 15A-958.
The procedure for change of venue is in
accordance with the provisions of Article 3
of this Chapter, Venue.
N.C.G.S. § 15A-957 (2001). We agree that the trial court found
that defendant failed to present a sufficient showing of
prejudice to change venue, but we disagree that the trial courtlacked the inherent authority, in its discretion, to change
venue.
It is well settled that “[n]otwithstanding this
apparent statutory limitation upon the power of a court to order
a change of venue, a court of general jurisdiction . . . has the
inherent authority to order a change of venue in the interests of
justice.” State v. Barfield, 298 N.C. 306, 320, 259 S.E.2d 510,
524 (1979) (citing English v. Brigman, 227 N.C. 260, 41 S.E.2d
732 (1947)), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137
(1980). “In either case, a motion for a change of venue is
addressed to the sound discretion of the trial judge and will not
be disturbed on appeal in the absence of a showing of an abuse of
discretion.” Id. A judge of a superior court “on his own
motion, in his own discretion and in the furtherance of justice,
has the authority to transfer a case from one county to another,”
State v. Chandler, 324 N.C. 172, 183, 376 S.E.2d 728, 735 (1989)
even in the absence of express statutory authority. “Such power
existed at common law, and, therefore, unless specifically denied
by statute, still adheres in the courts of the country.”
Brigman, 227 N.C. at 261, 41 S.E.2d at 732. “These statutory
limitations on the power of a court to order a change of venue
are preempted by the inherent authority of the superior court to
order a change of venue in the interest of justice.” Chandler,
324 N.C. at 183, 376 S.E.2d at 735 (citing Barfield, 298 N.C.
306, 259 S.E.2d 510).
In the instant case, the trial court used its sound
discretion and evoked its inherent authority to change venue inthe interest of and furtherance of justice. The trial court was
fully aware that defendant had been previously sentenced to death
in Anson County. Because of the previous problems choosing
jurors in Anson County and the accompanying publicity, defendant
requested that venue be changed from Anson County. The trial
court granted this request on 23 November 1998. From our review
of the record, it is clear that the trial court was making a
decision at defendant's request to benefit defendant in his
upcoming trial. It is clear from the record that the prosecution
wanted to keep this case in Anson County and that the trial court
prevailed upon the prosecution to consent to a change of venue to
Stanly County. It is also clear from the record that the trial
court took into consideration whether there were adequate
facilities and manageable dockets in the other counties. The
trial court determined that there would be less publicity in
Stanly County and that jury selection would proceed at a faster
rate. We hold that the trial court's decision was without error,
structural or otherwise.
Next, defendant argues that he did not waive his right
to venue, i.e., his right to be tried in Anson County. Defendant
filed a motion for a change of venue, but now contends he did not
want the change to be Stanly County. Defendant does not have the
right to change venue to the county of his choice. At the
hearing for a change of venue, defendant's attorney specifically
asked not to have the case tried in Anson County, agreed that
jury selection would go faster in another county, and noted that
the best jail facility was in Union County. Defendant waspresent in the courtroom during the hearing and voiced no
opposition to any of the arguments posed. Defendant had been
very vocal on other occasions, but remained silent at this
hearing. He made no objection to any arguments during this
hearing and, in fact, made no comments at all. He never withdrew
or repudiated his motion to change venue. This argument is
without merit.
Defendant next contends that he is entitled to a new
trial because he and his attorneys came to an impasse about venue
and because his attorneys refused to follow defendant's
directions. We have previously cited to the transcript of the
hearing held on 24 August 1998 in which defendant explicitly
refers to his right to direct his attorneys when they reached an
impasse:
MR. PREVATTE: And I know what's -- some
of the things that need to be done. I've
told them, and they won't do it. And it all
-- the law -- the law states that when a
defendant and his counsel come[] to an
impasse, that the defendant's desires
override those of his counsel. I've read
that in the North Carolina laws and
procedures.
We disagree and hold that defendant's arguments are misplaced.
“[W]hen counsel and a fully informed criminal defendant
client reach an absolute impasse as to such tactical decisions,
the client's wishes must control . . . .” State v. Brown, 339
N.C. 426, 434, 451 S.E.2d 181, 187 (1994) (quoting State v. Ali,
329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991)), cert. denied, 516
U.S. 825, 133 L. Ed. 2d 46 (1995). As previously noted,
defendant had filed his motion for change of venue from AnsonCounty. After a thorough review of the record, it is apparent
that defendant did not want to be tried in any county in the
twentieth prosecutorial district. Assuming, arguendo, that there
was an impasse between defendant and his attorneys, and assuming
it was an absolute impasse, defendant's arguments are
misdirected. The impasse was between defendant and his attorneys
about whether or not to have venue changed to Stanly County. In
a motion for change of venue, the trial court determines whether
a move to a different county will take place. Relief pursuant to
a motion for change of venue may consist of the trial court
transferring the trial either to another county in the same
prosecutorial district or to another county in an adjoining
prosecutorial district. See N.C.G.S. § 15A-957(1).
A defendant may not condition a motion for a change of
venue upon the trial court's agreeing to transfer the case to a
particular county specified by the defendant. In addition, the
record does not support defendant's allegations about his defense
counsel directing the venue choice or making efforts to change
venue to Stanly County. As noted before, the hearing on the
motion was the critical time for defendant to have declared any
disapproval, repudiation, or withdrawal of the motion. Defendant
has no right to dictate the choice of a new county or to exclude
some county from those to be considered by the trial court.
Neither his attorneys nor the trial court violated defendant's
rights with respect to venue. This assignment of error is
overruled. Defendant also assigns error to the trial court's
failure to allow defendant's personal request to speak to the
court outside the presence of the prosecution regarding his pro
se motion to dismiss his attorneys.
Initially, defendant wrote the court to move for
dismissal of his counsel. During the 24 August 1998 hearing on
defendant's motion, defendant asked to speak to the court ex
parte to explain the problems with his counsel to the court. The
court did not agree to this request. The State refused to agree
that it would not use defendant's statements during the hearing
against defendant. Defendant indicated that the general basis of
his complaint was that his attorneys had failed to meet several
of his requests. Defendant told the judge that the reasons his
attorneys did not want “that evidence brought out is totally
ridiculous. The reasons I can't say in front of here because of
the prosecution.”
Defendant now argues his attorneys could not openly
speak absent an ex parte hearing because they were constrained by
the attorney-client privilege. Defendant thus argues the trial
court's failure to grant an ex parte hearing violated his Fifth,
Sixth, and Fourteenth Amendment rights. Essentially, defendant
argues the trial court's action put him in an impossible
situation wherein if he revealed the necessary information
concerning his attorneys' alleged ineptitude, this information
would also be revealed to the prosecution, who could use it
against defendant at trial. If defendant failed to reveal theinformation, however, he would be unable to support his motion
for new counsel.
As the State aptly points out in its brief, although
defendant cites several assignments of error, defendant presents
arguments only on the issue of whether the trial court erred in
failing to grant an ex parte hearing in the present case. As
such, this is the sole issue here, and all other assignments of
error are deemed abandoned. See N.C. R. App. P. 28(a).
A full review of the pertinent portions of the record
is necessary to understand what was at issue during the hearing.
Defendant spoke at great length at the hearing; defendant's
attorneys also spoke in response to the trial court's inquiries.
Defendant's attorneys indicated their reluctance to speak absent
defendant's waiver of the attorney-client privilege. After
defendant acknowledged that his attorneys had already prepared
his case at a prior trial, the trial court asked defendant what
additional actions needed to be taken. Defendant replied,
There's new evidence. There's not new
evidence, but evidence that's been out there
to prove that the State's main witness lied
and made a deal with the D.A. to get
18 felonies dropped a month right after I was
convicted. Not only did [the State] lie to
the defense, he lied to the court and said he
hadn't made a deal with the State witness.
The trial court then asked if this was not the reason
defendant's initial conviction had been reversed. See Prevatte,
346 N.C. 162, 484 S.E.2d 377. Defendant agreed and added, “But
I'm also saying there's other evidence there to show that he
lied.” When the trial court asked defendant what additional
evidence he thought existed, defendant stated he would prefer toelaborate on the information in the judge's chambers. Although
defendant's attorneys stated they could continue to fully
represent defendant, defendant still insisted he and his counsel
were at an impasse concerning certain issues of trial
preparation. Among other things, defendant indicated that he had
asked his counsel to petition the court for funds to hire a
private investigator to find evidence and that counsel had failed
to do so for “ridiculous” reasons.
Additional light is shed on the present issue by
examination of a letter defendant wrote to another judge shortly
after the hearing. Defendant specifically indicates at the start
of the letter that he was writing it in reference to the
24 August 1998 hearing on the motion to dismiss counsel. In the
letter, defendant referred to the trial court's questioning
during the hearing about the nature of the evidence in issue. He
stated that the evidence would show the witness in the first
trial (Jeffrey Burr) lied in his testimony from beginning to end.
Further, defendant asserted that the location of two bullets at
the murder scene would prove that the witness' testimony was
false. Specifically, according to the letter, two law
enforcement officers (Hutchinson and Poplin) inserted false
evidence of the bullets into the record at defendant's first
trial.
Also in his letter, defendant said his attorneys had
repeatedly ignored his requests to seek funds for a private
investigator to locate this evidence. According to the letter,
this is one of the reasons defendant wanted his attorneysdismissed. Defendant concluded his letter with a request that
the trial court share the letter with defendant's attorneys in
the hope they would then obtain a private investigator.
Defendant's letter was later discussed at an October 1998 hearing
on some of defendant's other motions. After discussion of the
letter, the trial court allowed an oral motion by defendant's
counsel for funds for someone to further investigate the issue.
Accordingly, defendant did eventually obtain what he
sought from his attorneys. Moreover, because neither the two
officers, Hutchinson and Poplin, nor the prior witness, Jeffrey
Burr, testified at defendant's new trial, it appears defendant's
concerns about this issue may have been unnecessary. Instead,
the primary issue during the guilt/innocence phase of the trial
appears to have been defendant's mental state at the time of the
killing. It thus appears the primary matter about which
defendant desired to speak with the trial court in private was
resolved.
Our review of the record reveals the trial court
properly handled defendant's motion for new counsel. An indigent
defendant has no right to replace appointed counsel merely
because the defendant is dissatisfied with the present attorney's
work or because of a disagreement over trial tactics. State v.
Anderson, 350 N.C. 152, 167-68, 513 S.E.2d 296, 306, cert.
denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999); State v. Kuplen,
316 N.C. 387, 396-97, 343 S.E.2d 793, 799 (1986). An attorney,
whether retained or appointed,
is not the mere lackey or “mouthpiece” of his
client. He is in charge of and has theresponsibility for the conduct of the trial,
including the selection of witnesses to be
called to the stand on behalf of his client
and the interrogation of them.
State v. Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 179 (1976).
When a defendant makes a motion for new counsel, if it appears
the present attorney is reasonably competent and there is no
conflict between attorney and client that renders the attorney
incompetent, the motion for new counsel must be denied.
Anderson, 350 N.C. at 167, 513 S.E.2d at 305-06.
In the present case, the trial court properly granted
defendant a hearing so defendant could explain his desire to
change attorneys. Defendant failed to provide the trial court
with sufficient information to support his motion for new
counsel. Because defendant's attorneys did eventually agree at
the October 1998 hearing to obtain money for a private
investigator, it does not appear defendant and his attorneys ever
reached an impasse such that the attorneys could not competently
function. Moreover, it was certainly within the attorneys'
discretion to use their time and energy as they saw best to
prepare for trial. In this case, the attorneys may have seen
preparation of an insanity defense, rather than pursuit of the
evidence defendant sought, as the best way to proceed.
Accordingly, based on the evidence presented, the trial court
properly denied defendant's motion for new counsel. See State v.
Sweezy, 291 N.C. 366, 373, 230 S.E.2d 524, 529 (1976) (motion properly denied where “[d]efendant merely stated
that he felt that his counsel were not going to represent him
properly without pointing to any act or omission indicating
incompetency or lack of diligence on the part of his counsel”).
Defendant nonetheless insists he needed an ex parte
hearing to disclose the information supporting his motion.
Defendant failed to provide the trial court, however, with even a
minimal basis to grant such an ex parte hearing. A trial court
does not have to automatically hold an ex parte hearing in
circumstances such as those presented in the present case. See
State v. White, 340 N.C. 264, 276, 457 S.E.2d 841, 848 (no ex
parte hearing was required on defendant's motion for funds to
hire private investigator), cert. denied, 516 U.S. 994, 133 L.
Ed. 2d 436 (1995); State v. Phipps, 331 N.C. 427, 450-53, 418
S.E.2d 178, 190-92 (1992) (no right to ex parte hearing on motion
for funds for fingerprint expert). But see State v. Ballard, 333
N.C. 515, 519, 428 S.E.2d 178, 180 (ex parte hearing was needed
for motion requesting assistance of psychiatric expert because
this issue was “one of an intensely sensitive, personal nature”),
cert. denied, 510 U.S. 984, 126 L. Ed. 2d 438 (1993). Despite
the trial court's attempt in the present case to discuss with
defendant what issues prompted his motion, defendant failed to
present any evidence that an issue of a personal nature, as in
Ballard, was at stake. Indeed, defendant merely mentioned to the
trial court his desire to speak to the trial judge alone. Even
if defendant's comments are given the broadest possible reading,
defendant merely indicated that additional evidence might exist. In short, defendant offered no evidence of his need to reveal
information at the hearing that would have been useful to the
prosecution or that would have otherwise needed secret
presentation. Rather, similar to White and Phipps, defendant
apparently wished only that his attorneys would seek funds to
obtain physical evidence. As such, defendant failed to show an
ex parte hearing was needed.
Finally, because we hold that defendant's motion for
new counsel was handled properly, we also reject defendant's
equal protection claim.
Defendant's assignment of error is without merit.
In another assignment of error, defendant argues his
Sixth Amendment right to counsel was denied when his attorneys
violated their duty of loyalty and freely revealed their work
product in front of the prosecution. During the 24 August 1998
hearing on defendant's motion to dismiss his attorneys, the trial
court questioned defendant's attorneys about their representation
of defendant. According to defendant, his attorneys improperly
revealed their work product concerning trial strategy and
undermined defendant's case. Defendant argues that an actual
conflict of interest developed between defendant's interest in
effective representation and his attorneys' interest in their
professional reputation. Moreover, defendant alleges the trial
court improperly allowed the State to be involved in the
consideration of whether defendant's counsel was adequate.
A criminal defendant has a right to representation free
from conflict. State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d336, 343 (1996). To prove a violation of this right, a defendant
must show that the conflict affected his attorney's performance
at trial. Id. In the present case, defendant argues his
attorneys revealed trial strategy at the pretrial hearing and
thus undermined his defense at trial.
As a preliminary matter, upon this Court's extensive
review of the 24 August 1998 hearing, we find no evidence that
defendant's attorneys revealed any information that constituted
work product. Rather, the attorneys simply responded to the
trial court's questions concerning what they had done to
investigate and prepare the case. Because the attorneys
described in general terms what had been done, rather than
disclosing any of their mental processes, there was no work
product violation. See State v. Hardy, 293 N.C. 105, 126, 235
S.E.2d 828, 841 (1977) (“The [work product] doctrine was designed
to protect the mental processes of the attorney from outside
interference and provide a privileged area in which he can
analyze and prepare his client's case.”).
At the hearing, defendant's attorneys disclosed that
they had made trips to other states, interviewed a psychiatrist
in Georgia who treated defendant, and expressed a willingness to
return for an additional visit with the psychiatrist. The
attorneys also indicated they had interviewed every witness
defendant wished, had investigated defendant's apprehension in
Arkansas, and were prepared to impeach a witness whose prior
testimony might have been in exchange for dismissal of charges
against the witness. The attorneys also informed the trial courtthat they had discussed with the State transferring the case to
Stanly County but had not reached any agreement.
Defendant's attorneys disclosed no information at the
hearing that revealed their defense strategy. Indeed, defendant
has failed to show how his trial would have differed were it not
for his attorneys' statements at the hearing. Defendant's
attorneys simply answered the trial court's questions, as they
were required to do as officers of the court, in as responsible a
manner as possible to aid in the consideration of defendant's
motion to dismiss his attorneys.
Defendant also argues the State was improperly allowed
to participate in the decision on defendant's motion to dismiss
his attorneys. Defendant cites the following exchange at the
hearing:
THE COURT: Well, what's your position
as to whether or not these attorneys ought to
remain in the case, whether or not some other
attorney ought to be in it?
[THE STATE]: Well, Your Honor, the
defendant doesn't have the right to pick and
choose whatever counsel he prefers to have or
is more comfortable to have. We really feel,
quite frankly, Your Honor, that the purpose
of him filing this motion is simply for the
purpose of delay. One alternative that
occurs to the State is for the appointment of
standby counsel in the form of Mr. Painter
and Mr. McSheehan. Other than that, we take
no position. We just want the court to be
aware of our belief that Mr. Prevatte's
motion in front of you is simply for the
purpose of delaying and putting off the
inevitable trial.
The State's comments merely reflect its interpretation
of the law governing defendant's motion as well as its belief
that defendant was attempting to stall his trial. Because thetiming of the trial could have affected the State, it was proper
for the trial court to ascertain the State's stance on
defendant's motion.
This assignment of error is overruled.
In another assignment of error, defendant contends the
trial court erred by granting the State's request for discovery
of defendant's medical and psychological records and by requiring
the defense's psychology experts to issue written reports in
violation of N.C.G.S § 15A-905, which provides in pertinent part:
Reports of Examinations and Tests. - If the
court grants any relief sought by the
defendant under G.S. 15A-903(e), the court
must, upon motion of the State, order the
defendant to permit the State to inspect and
copy or photograph results or reports of
physical or mental examinations or of tests,
measurements or experiments made in
connection with the case, or copies thereof,
within the possession and control of the
defendant which the defendant intends to
introduce in evidence at the trial or which
were prepared by a witness whom the defendant
intends to call at the trial, when the
results or reports relate to his testimony.
In addition, upon motion of a prosecutor, the
court must order the defendant to permit the
prosecutor to inspect, examine, and test,
subject to appropriate safeguards, any
physical evidence or a sample of it available
to the defendant if the defendant intends to
offer such evidence, or tests or experiments
made in connection with such evidence, as an
exhibit or evidence in the case.
N.C.G.S. § 15A-905(b) (2001).
Defendant argues the first requirement of the statute
was not met because he never requested any results or reports in
the State's possession. Defendant argues this is the proper
interpretation of the statute despite the fact that the State wasentitled to discovery of the material at issue in defendant's
first trial.
Our examination of the record reveals defendant never
objected during the hearing to the discovery in issue. Indeed,
defendant actually conceded that the State had properly
interpreted the applicable law granting the State the right to
discovery.
At a pretrial hearing on 13 July 1998, the State asked
the trial court to order, as it had in defendant's first trial,
that defendant permit the State to copy results or reports of all
psychological examinations of defendant that defendant intended
to offer into evidence at trial. In response, one of defendant's
attorneys stated, “They're entitled to it if we intend to offer
it. That's what I understand the law is.” The trial court then
entered an order requiring defendant to notify the State of any
mental health or similar report defendant intended to use.
Defendant's counsel responded to the trial court's oral order by
saying, “Yes, sir.”
Defendant never objected to the trial court's grant of
the relevant discovery to the State. Indeed, as indicated above,
defendant agreed that the law gave the State the right to obtain
the materials requested. As such, defendant has failed to
preserve this issue for appellate review and, having conceded the
issue at trial, cannot properly raise it here. See N.C. R. App.
P. 10(b)(1).
Defendant's assignment of error is overruled.
JURY SELECTION
In another assignment of error, defendant contends the
trial court erred by denying defendant's motion to strike the
panel of jurors that heard prospective juror Mabry's comment that
she recognized a mug shot of defendant in the paper. The
following portion of jury selection is relevant:
[THE STATE:] . . . Because this did
receive some attention from the press. Do
any of you all recall those circumstances or
that murder or this case?
(Jurors shake their head[s] negatively.)
[THE STATE]: Okay.
MS. MABRY: I do recognize his mug shot
that was in the paper. I mean, I remember
that picture.
[THE STATE]: Okay. When did that
appear in the paper?
MS. MABRY: Well, I'm not quite sure.
But maybe I pictured him somewhere else. But
I remember we -- we discussed his mustache.
[THE STATE]: Okay. Are we talking
about a matter of years ago?
MS. MABRY: Yeah.
[THE STATE]: Or are we talking about
recently?
MS. MABRY: It wouldn't be recent.
[THE STATE]: Because I wasn't aware
that it had been in the paper recently.
MS. MABRY: It wouldn't be recent.
[THE STATE]: I misunderstood and
thought that you meant recently.
MS. MABRY: No. I just remember the
mustache.
[THE STATE]: He looks familiar now that
you've had a chance to look at him a little
bit?
MS. MABRY: Right.
[THE STATE]: Now, do you recall,
Ms. Mabry, whether or not when you saw his
picture in the paper, forming an opinion
about this case?
MS. MABRY: That was a while back. I
wouldn't -- I don't remember.
[THE STATE]: Okay. If you formed an
opinion about that -- this case, would you
hold that opinion now. Or are you, as you
sit here today, without opinion about this
case, open minded and fair?
MS. MABRY: Open minded.
[THE STATE]: Okay. You have no opinion
about the guilt of Mr. Prevatte as he sits
here today?
MS. MABRY: No.
[THE STATE]: Okay. And you don't feel
like the fact that you saw his name in the
paper -- which we've acknowledged that he got
some press attention. The fact that you saw
his picture in the paper would prevent you
from being fair and impartial in this case?
MS. MABRY: No.
[THE STATE]: Okay. All right. Anybody
else?
(Jurors shake their head[s] negatively.)
Mabry was eventually excused for a reason unrelated to
defendant's picture appearing in the paper. Defendant argues the
information about the mug shot allowed the other jurors to
speculate about prior crimes defendant may have committed.
First, defendant provides no evidence that the mug shot
that Mabry saw was connected to another crime. The murder in
issue was committed over five years prior to the trial and so the
mug shot certainly could have been related to that crime. Second, there is no reason to believe the other jurors
formed any improper opinions based on Mabry's comment about the
mug shot. In State v. Corbett, we considered a prospective
juror's remark that he had been following the case in the paper
and had formed an opinion that the defendant was guilty. 309
N.C. 382, 385, 307 S.E.2d 139, 142 (1983). The defendant argued
this remark prevented the remaining jurors from exercising their
own judgment. Id. at 386, 307 S.E.2d at 143. This Court held it
was the defendant's burden to show a juror held an improper
opinion. Id. Moreover, this Court stated:
Defendant has failed to establish that
the mere fact that one prospective juror who
was later excused for cause stated that in
his opinion defendant was guilty caused the
remaining prospective jurors to become unable
to render a verdict based on the evidence
presented in court. Defendant has presented
no evidence that [the prospective juror's]
opinion carried any weight with the jurors
selected.
Id. at 386-87, 307 S.E.2d at 143.
In the present case, unlike Corbett, prospective juror
Mabry made no comment that she thought defendant was guilty.
Instead, she merely mentioned seeing his mug shot in the paper.
Further, the trial court instructed the jury numerous times to
base its considerations of the case solely on the evidence
presented.
Because defendant has failed to show prospective juror
Mabry's comment influenced the jury's deliberations, we hold
there was no error here.
This assignment of error is overruled. In another assignment of error, defendant argues the
trial court erred by permitting the State's questions during jury
voir dire which implied that jurors were free to ignore or
devalue testimony of psychologists, psychiatrists, and other
experts. Defendant failed to preserve this issue for appeal as
he did not refer in his assignment of error to all the questions
that he addresses in his brief. This Court can review “those
assignments of error set out in the record on appeal.” N.C. R.
App. P. 10(a). To be sufficient, assignments of error must
“direct[] the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references.” N.C. R. App. P. 10(c)(1); see
also State v. Price, 326 N.C. 56, 87, 388 S.E.2d 84, 101-02,
sentence vacated on other grounds, 498 U.S. 802, 112 L. Ed. 2d 7
(1990). Defendant also failed to object to all but two of the
questions at trial. When he objected to those two questions, he
objected on other grounds.
Regardless of whether defendant preserved this issue,
the questions to which defendant objects did not misstate the
law. For example, defendant objects to the following comment by
the State during jury voir dire: “You don't have to believe any
part of what an expert witness says, just because that person is
an expert witness.”
The law in North Carolina is well established that a
prosecutor may not express his opinion as to the credibility of a
witness. State v. Riddle, 311 N.C. 734, 737, 319 S.E.2d 250, 253
(1984). In this case, however, the prosecutor did not express anopinion as to the credibility of specific witnesses. He did not
intimate that he thought defendant's experts would lie or that he
did not believe defendant's experts. The State's questions
during jury voir dire were simply intended to determine if jurors
would equally consider testimony of lay witnesses concerning
defendant's mental capacity. Before jury deliberations began,
the trial court instructed the jury on expert witnesses as
follows:
Now, in this case, you've heard evidence
from witnesses who have testified as expert
witnesses. Now, an expert witness is
permitted to testify in the form of an
opinion in a field where he purports to have
specialized skill or knowledge. Now, as I've
instructed you, you are the sole judges of
the credibility of each witness and the
weight to be given to the testimony of each
witness.
In making this determination as to the
testimony of an expert witness, you should
consider, in addition to the other tests of
credibility and weight, the witness' training
and qualifications and experience or lack
therefore, the reasons if any given for the
opinion, whether the opinion is supported by
facts that you find from the evidence,
whether the opinion is reasonable, and
whether it is consistent with other
believable evidence in the case.
Now, you should consider the opinion of
an expert, but you are not bound by it. In
other words, you are not required to accept
an expert witness' opinion to the exclusion
of the facts and circumstances disclosed by
other testimony.
These instructions were given in accordance with the pattern jury
instructions, see N.C.P.I.--Crim. 104.94 (1990), and have been
approved by this Court, State v. Kennedy, 320 N.C. 20, 36-37, 357
S.E.2d 359, 369 (1987). The State's questions regarding expertwitnesses were in concert with the trial court's jury
instruction. We hold the State's questions were proper.
This assignment of error is overruled.
In another assignment of error, defendant argues the
trial court erred by overruling his objections to prosecutorial
vouching. Defendant argues the State's comments during jury voir
dire were unacceptable in that the State vouched to the jury that
it was arguing the just and true case. Defendant argues multiple
statements by the State were prejudicial. Most of these
statements referred to evidence the State would present and to
what would occur during the sentencing phase. For example,
defendant argues it was error when the State asked a juror the
following question:
Would you also agree, then, that in a
case that the State is seeking the death
penalty, that as a matter of fairness, the
jury should give some consideration to the
death penalty once it reached that point?
At this point, defendant objected to the term “once it
reached that point,” and the trial court clarified, stating,
“Well, if it reaches that point.”
Defendant further argues the following line of
questioning by the State was prejudicial:
[THE STATE]: Did you understand that if
you are convinced based on the facts of this
case and His Honor's instructions on the law,
that if you are convinced that the death
penalty is the appropriate punishment for
that man over there, that would then be your
duty to come back and announce that to be
your verdict, the death penalty?
. . . .
[DEFENSE COUNSEL]: Object to the form
of the question in the manner which it was
stated, assumes certain things.
THE COURT: You understand that we may
not reach the punishment phase at all. Do
you understand that?
[PROSPECTIVE JUROR]: Yes.
THE COURT: Okay. Just necessary to ask
these preliminary questions in case we do go
into that at a later time.
[THE STATE]: My question . . . was
really more whether or not you recognize that
it may become -- and we say it will become in
this case -- your duty to find the defendant
guilty of first degree murder, and then to
announce the death penalty as the sentence in
that case. It is not an academic or a
hypothetical proposition. We're saying you
will get there. Do you understand that to be
your duty?
[DEFENSE COUNSEL]: Objection.
Objection.
THE COURT: It will be your duty to
decide the issue one way or the other. Do
you understand that?
[PROSPECTIVE JUROR]: Yes.
THE COURT: If it reaches that.
In questioning another prospective juror, the State
asked:
Should the defendant be convicted of first
degree murder -- we contend he will be -- and
the jury that then hears the sentencing
issues decide for itself unanimously by proof
beyond a reasonable doubt that the
appropriate penalty given the law, given what
aggravating circumstances are, and what the
mitigating circumstances are, given His
Honor's instruction as to those things, that
the appropriate penalty is death, do you
understand then that it would be your duty to
come back and announce that as your sentence
recommendation?
. . . .
. . . [I]t's not a hypothetical question
I'm asking here. It's not speculative or
academic. It's something we contend will
happen. So my question of you is not -- not
hypothetical
. . . .
. . . You understand that that -- should
we reach that point, that that is going to be
what's required of you? That that is part of
your -- your duty as a juror.
[PROSPECTIVE JUROR]: Yes.
[THE STATE]: Given that certain
circumstance.
[PROSPECTIVE JUROR]: I understand.
. . . .
[THE STATE]: Okay. You realize that
that is, under your oath, what's going to be
required of you should you reach that point.
[PROSPECTIVE JUROR]: (Nods head
affirmatively.)
[THE STATE]: All right.
[PROSPECTIVE JUROR]: Yeah.
[THE STATE]: And that the State has a
right to a fair trial.
[PROSPECTIVE JUROR]: Yeah.
[THE STATE]: And that as part of a fair
trial, should we reach that point, the State
has a right for that to happen.
[PROSPECTIVE JUROR]: Yes.
Defendant also argues that comments during questioning
of another prospective juror were prejudicial:
[THE STATE]: Do you understand that in
a death penalty case, as in any criminal
trial, the State, as well as the defendant,
are entitled to a fair trial. Okay? Entitled to jurors who will fairly consider
both sentencing options. Okay? The death
penalty --
[DEFENSE COUNSEL]: Objection.
[THE STATE]: As well as life
imprisonment.
THE COURT: What's that?
[DEFENSE COUNSEL]: Improper statement,
Judge. They consider the -- first a guilt or
not guilty in this case before they get to
that. And then they consider the evidence
presented.
THE COURT: You understand it's a two-
part trial and you determine the guilt or
innocence of the defendant of the underlying
crime first?
[PROSPECTIVE JUROR]: Yes.
THE COURT: Only if he's found guilty do
we go into a sentencing phase. Do you
understand that?
[PROSPECTIVE JUROR]: (Nods head
affirmatively.)
THE COURT: You're asked these questions
only in case we get to a second phase. You
understand all that?
[PROSPECTIVE JUROR]: Yes, sir.
[THE STATE]: . . . the State contends
we're going to get to that point. And that's
why these questions are relevant. Do you
understand that we're contending that we will
get to a sentencing phase, okay? And that's
why this is not a hypothetical type
situation. That's why this isn't just --
[DEFENSE COUNSEL]: Objection.
[THE STATE]: -- exercise.
THE COURT: Overruled.
Defendant argues in several other instances the State
overstepped its bounds and prejudiced the prospective jurors. During jury voir dire, as in jury arguments, counsel
cannot put incompetent and prejudicial matters before the jury
“'by injecting his own knowledge, beliefs and personal opinions'”
when they are unsupported by the evidence. State v. Gibbs, 335
N.C. 1, 38-39, 436 S.E.2d 321, 342 (1993) (quoting State v.
Johnson, 298 N.C. 355, 368, 259 S.E.2d 752, 761 (1979)), cert.
denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). In Gibbs, the
defendant argued that during jury voir dire, the prosecutor's
prefacing of questions with comments about moving from the first
stage of trial to the penalty phase were improper and the
implication that the penalty phase would be reached was
prejudicial. Id. at 38, 436 S.E.2d at 342. This Court held that
such comments, even when repeated, did not constitute an attempt
to put before the prospective jurors “prejudicial matters by
injecting [counsel's] own beliefs or personal opinions
unsupported by evidence.” Id. at 39, 436 S.E.2d at 343.
In the present case, the State never said the
sentencing phase definitely would be reached, but only insinuated
such a possibility. The State's comments, taken in context,
“refer to the conditional nature of bifurcated capital
prosecutions.” Id. at 39, 436 S.E.2d at 342. Further, the trial
court's clarifications and the prospective jurors' responses to
the trial court and to the State made it clear that the
prospective jurors were not under the impression the sentencing
phase was a certainty. After reviewing all the comments to which
defendant objects, we hold these statements were not improper. Accordingly, defendant's assignment of error regarding
prosecutorial vouching is without merit.
In another assignment of error, defendant argues the
trial court erred by allowing the State to inform prospective
jurors that as part of their duty they might have to stand up
alone and announce a death verdict. Defendant further argues the
trial court erred by excusing prospective juror Thomas because
she could not fulfill this duty.
The following transcript excerpt is pertinent to our
analysis of this issue:
[THE STATE]: If based on those things,
if the State has convinced you, Mrs. Thomas
[prospective juror], of the defendant's guilt
and the appropriateness of the death penalty
as the punishment in this case, do you think
that you could come back with that as being
your sentence recommendation for the death
penalty?
MS. THOMAS: I believe in the death
penalty in some cases. But personally, I
have a problem with being the one to say --
to say, you know, put this man to death.
[THE STATE]: Well, to be very honest
with you, Mrs. Thomas, that's exactly what
we're asking members of this jury to do. Do
you understand that?
MS. THOMAS: Yes.
[THE STATE]: And also what we'll be
asking, should we get to that point, and we
say we will get to that point, not only would
you be asked to make up that as your verdict,
guilty of first degree murder as well as the
two kidnappings, but also the death penalty
as being your recommendation. What you would
be required to do, ma'am, is to come back
into court and stand up all by yourself and
announce to everyone in court, including the
defendant over there, that the death penalty
is your sentence recommendation.
It is only fair that you know that now
going in. But that is going to be a part of
your duty as a juror in this case, should we
reach that point. We contend we will. Now,
having heard all that, do you feel that you
could do that?
MS. THOMAS: I'm not sure that I could.
[THE STATE]: You understand that the
questions that I've asked are based largely
on what would be required of jurors in the
case at different points, and that it is not
a hypothetical or academic or speculative
question on our part in asking if you would
be able to do that.
MS. THOMAS: Right.
[THE STATE]: We need to know yes or no
if you could.
MS. THOMAS: I don't think I could.
[THE STATE]: Do you understand that
that is part of what's required?
MS. THOMAS: Yes.
[THE STATE]: Would the fact that you
don't think that you could do that prevent
you from, first of all, finding the defendant
guilty of first degree murder?
[DEFENSE COUNSEL]: Objection.
[THE STATE]: Knowing that you'd then
have to pass upon the sentencing issue?
THE COURT: Overruled.
MS. THOMAS: If I thought he was guilty,
I would say guilty.
[THE STATE]: Knowing that you would
then have to decide what the sentence should
be?
MS. THOMAS: Yes.
[THE STATE]: Knowing that you would
also then have to come back into court and do
something that you've said you don't think
you could do?
MS. THOMAS: Well, I couldn't say that I
thought he was not guilty if I thought he was
guilty.
[THE STATE]: You understand that part
of your obligation as a juror, is to come
back in the court and announce whatever
sentence recommendation you announce?
MS. THOMAS: Yes.
[THE STATE]: By yourself, one at a
time?
MS. THOMAS: Yes.
[THE STATE]: And did I understand you
to say that you don't think that you could do
that if the sentence recommendation is the
death penalty?
MS. THOMAS: That's right.
THE COURT: Is there something about
having to stand there and affirm the sentence
that bothers you, or that you've got to stand
up and say something personally that bothers
you, or --
MS. THOMAS: No. It would bother me to
stand up and say this man has got to -- I've
got to make the decision that this man has
got to die.
THE COURT: Well, what will happen if
the time comes if -- if the jury recommends
the death sentence, the clerk will read a
form that -- substantially as follows, that
foreman of the jury has returned a
recommendation that the sentence -- defendant
be sentenced to death. And each person on
the jury would have to stand individually,
and the clerk would say, “Your foreman has
returned a recommendation that the defendant
be sentenced to death. Is this your
recommendation, and do you still assent
thereto? Do you still agree to it?” You
would be required to say yes or no. Each of
you would be required to stand there and say
yes or no, that you agree with it or
disagree. Do you understand?
MS. THOMAS: Yes.
THE COURT: You don't think you could be
part of that process?
MS. THOMAS: (Shakes head negatively.)
THE COURT: Ma'am?
MS. THOMAS: No, sir.
THE COURT: You understand that would be
part of your duty as a juror to go through
that if you served on the case?
MS. THOMAS: Yes.
THE COURT: Are your feelings about that
so strong, then, you feel it would impair
your ability to be a juror in this case,
knowing that that would be part of the
process?
MS. THOMAS: I would have a problem with
saying it.
THE COURT: Well, we got to know up
front. Not a thing about, you know, I should
have let them know this earlier. We need to
know before we get into the case.
MS. THOMAS: I would have to say yes, it
would.
THE COURT: That it would impair your
ability to be a juror in this case?
MS. THOMAS: Yes.
At this point, the State challenged for cause,
defendant objected and sought to further question the juror, and
the trial court overruled defendant's objection.
The standard to determine if a prospective juror may be
excluded for cause because of her views on capital punishment was
clearly laid out in the United States Supreme Court's decision in
Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841 (1985). The
“standard is whether the juror's views would 'prevent or
substantially impair the performance of his duties as a juror inaccordance with his instructions and his oath.'” Id. at 424, 83
L. Ed. 2d at 851-52 (quoting Adams v. Texas, 448 U.S. 38, 45, 65
L. Ed. 2d 581, 589 (1980)). A juror's bias need not be
unmistakably clear and there are situations where the trial court
“is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law.”
Id. at 426, 83 L. Ed. 2d at 852.
After a careful review of the transcript, it is clear
the trial court and the State thoroughly questioned Thomas about
her views. Moreover, regarding defendant's argument concerning
jurors' individual ability to announce a death verdict, it
appears the State and the trial court were merely describing the
polling process for the jurors. Because the trial court
perceived an inability on Thomas' part to follow the law with
regard to imposition of capital punishment, the trial court, in
its discretion, concluded Thomas was not fit to serve on the
jury.
This assignment of error is overruled.
GUILT-INNOCENCE PHASE
In another assignment of error, defendant contends the
trial court violated defendant's right to present evidence in his
defense. Specifically, defendant argues the trial court erred by
failing to allow two expert witnesses, Dr. Daphne Timmons and Dr.
Nathan Strahl, to state the bases of their opinions. Further,
defendant argues the trial court erred by limiting the testimony
of some lay witnesses about defendant's state of mind. In reviewing defendant's brief, it is difficult to
ascertain the exact trial questions defendant argues were
erroneously handled. This Court has thus scrutinized each
segment of the record purportedly identified by defendant in the
relevant assignments of error. We find no error in any of the
testimony presented in these portions of the record. Below, we
address the portions of testimony to which defendant makes ample
argument in his brief.
First, defendant contends the trial court erred in
handling the following exchange between Dr. Timmons and defense
counsel:
[DEFENSE COUNSEL:] Did you talk to the
defendant Ted Prevatte about his actions and
how he was feeling and what he was doing
immediately up to the time that Cindy
McIntyre was killed on June the first of
1993?
[DR. TIMMONS:] Yes.
[DEFENSE COUNSEL:] And relate to the court
and the jury what Mr. Prevatte told you in
regards to that.
[THE STATE]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL:] Well, did you use what
Mr. Prevatte told you as far as what he was
thinking and what he was feeling and what he
was doing immediately prior to the time he
went over to Cindy McIntyre's house on June
the first of 1993 and formulate and evaluate
and make -- formulating an opinion as to his
sanity or insanity on June the first, 1993?
[THE STATE]: Objection.
THE COURT: Sustained.
It is well settled that an expert must be allowed to
testify to the basis of her opinion. State v. Ward, 338 N.C. 64,
105-06, 449 S.E.2d 709, 732 (1994), cert. denied, 514 U.S. 1134,
131 L. Ed. 2d 1013 (1995). Nonetheless, admission of the basis
of an expert's opinion is not automatic. State v. Workman, 344
N.C. 482, 495, 476 S.E.2d 301, 308 (1996). The trial court, in
its discretion, must determine whether the statements in issue
are reliable, especially if the statements are self-serving and
the defendant is not available for cross-examination. Id.
Moreover, if the statements appear unnecessary to the expert's
opinion, exclusion of the basis may be proper. State v. Baldwin,
330 N.C. 446, 457, 412 S.E.2d 31, 38 (1992).
In the present instance, it appears Dr. Timmons was
allowed to testify to some of what she was told by defendant and
to her review of defendant's psychiatric records as well as her
own psychological testing of defendant. Accordingly, it seems
Dr. Timmons was able to testify to the general basis of her
opinion. Moreover, defendant made no offer of proof concerning
the questions in issue; thus, we can only speculate as to the
witness' potential responses to the questions in issue. We
reject defendant's invitation to consider the transcript from a
prior trial in this respect because we cannot know if the
witness' viewpoint remained constant from the first to the second
trial. Accordingly, we reject defendant's argument that the
trial court erred in handling the testimony above.
Defendant also argues that another objection by the
State was improperly sustained when defendant elicited testimonythat defendant was taking medication and then asked Dr. Timmons
about the impact of these drugs on a person with mental illness
and whether the combination could affect defendant's ability to
maintain contact with reality. Again, defendant made no offer of
proof concerning this question, and this Court can only speculate
to the issues that were involved at trial. Moreover, a few
questions later, Dr. Timmons was allowed to testify that, on
1 June 1993, defendant was not in touch with reality and thus did
not understand that what he was doing was wrong. As such, we
cannot ascertain any prejudicial error here.
Defendant further argues that Dr. Strahl, like
Dr. Timmons, was also prevented from testifying to the basis of
his opinion. For example, according to defendant, Dr. Strahl was
limited both in talking about defendant's reported sleeping and
the combination of drugs he was taking as well as in explaining
the significance defendant's relationship with the victim played
in Dr. Strahl's opinion.
As to defendant's sleeping and drugs, defendant's
attorney was allowed to ask Dr. Strahl about the drugs and
medications that defendant was taking. The State's objection to
a question about defendant's sleeping problems was then
sustained. The trial court heard arguments outside the jury's
presence before making a final ruling. Although defense counsel
initially indicated an intent to ask a question for the record,
we find no evidence that an offer of proof was ever actually
made. Accordingly, it is difficult to tell where this line of
questioning was aimed. As to defendant's relationship with the victim, the
trial court also sustained the State's objection and heard
arguments outside the jury's presence. Defendant again made no
offer of proof. Accordingly, as with prior issues, this Court
can only speculate as to how Dr. Strahl's opinion was impacted by
the relationship between defendant and the victim. We refuse to
enter into such speculation, and therefore hold that the
testimony in issue was properly handled by the trial court.
Finally, defendant argues the trial court erred in
limiting the testimony of certain lay witnesses concerning
defendant's state of mind. Specifically, defendant points to the
trial court sustaining objections: (1) to defendant's attorney
asking Matthew McIntyre whether defendant was a “very polite man,
was out there helping neighbors and things”; and (2) to
defendant's attorney asking Ralph Pegram if he had seen defendant
“helping Jeff Burr's mom up there cut wood” and “doing things for
the elderly folks in the neighborhood.” Defendant now argues
these questions were relevant to defendant's state of mind. Once
again, there was no offer of proof from which this Court can
glean the relevancy of these questions. Moreover, it appears
unlikely the observations of these lay witnesses would have
substantially impacted the jury's consideration of defendant's
sanity. Accordingly, even assuming error arguendo, we find no
prejudice.
This assignment of error is overruled.
In another assignment of error, defendant argues that
his attorneys' failure to adequately present psychologicaldefenses constituted ineffective assistance of counsel.
Defendant cites the following question posed by defense counsel
to Dr. Timmons:
And based upon your examination of the
defendant, the various records and statements
about which you've testified, do you have an
opinion satisfactory to yourself and based
upon your professional training and
experience as to whether on or about June the
first, 1993, at the time of the alleged
offense of first degree murder of Cynthia
McIntyre, the defendant Ted Anthony Prevatte
was capable of premeditation and
deliberation?
[THE STATE]: Objection.
THE COURT: Sustained.
Relying on a transcript from the prior trial, defendant
asserts the witness would have said she did not believe defendant
was capable of premeditation and deliberation.
Defendant concedes the State's objection was proper
because expert witnesses generally may not testify as to whether
a legal standard has been met. See State v. Smith, 315 N.C. 76,
100, 337 S.E.2d 833, 849 (1985). Defendant argues his counsel
failed, however, by not asking the permissible question of
whether defendant was capable of formulating and carrying out
plans or of forming the specific intent to kill.
To show ineffective assistance of counsel, defendant
must prove (1) the performance of his counsel was deficient, and
(2) defendant was prejudiced by this deficiency. See State v.
Mason, 337 N.C. 165, 177-78, 446 S.E.2d 58, 65 (1994); State v.
McHone, 334 N.C. 627, 643, 435 S.E.2d 296, 306 (1993), cert.
denied, 511 U.S. 1046, 128 L. Ed. 2d 220 (1994). In the present case, as the State aptly points out, the
hypothetical questions that defendant argues should have been
asked would have sought evidence to support a diminished capacity
defense. As in the prior issue, however, we can only speculate
whether the questions in issue would have been answered favorably
to defendant. There are significant differences between an
insanity defense and a diminished capacity defense. See State v.
Ingle, 336 N.C. 617, 628-30, 445 S.E.2d 880, 885-86 (1994), cert.
denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995). As such, there
is no way for this Court to know if defendant's questions would
have in fact been helpful to defendant's case.
Assuming arguendo that the witness would have offered
evidence helpful to a diminished capacity defense, it was still a
matter of trial strategy to determine whether to offer evidence
of both diminished capacity and insanity or to focus all efforts
on insanity. Decisions concerning which defenses to pursue are
matters of trial strategy and are not generally second-guessed by
this Court. State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729,
739 (1986). Accordingly, we find no deficiency in the
performance of defendant's counsel.
This assignment of error is overruled.
In another assignment of error, defendant argues his
rights were violated by the State's attacks on Dr. Timmons and
the State's distortion of her testimony during closing argument.
Among the specific instances defendant cites are the State
calling Dr. Timmons “Mrs. Timmons” during cross-examination,
interrupting Dr. Timmons and refusing to allow her to explain heranswers, and repeating the same questions after sustained
objections. Defendant argues some of the same tactics were used
in questioning Dr. Strahl. Defendant argues the State also
unprofessionally denigrated the experts' testimony during closing
arguments by asking, “What is the legal evidence in this case
that supports the testimony of any psychiatrist that you've
heard?” Defendant cites the following portion of the State's
closing argument concerning Dr. Timmons:
She gave him a battery of tests. Bunch of
tests. Ink blots and trees and stick
figures. What was it she said about the
stick figures? Showed immaturity? Maybe he
just can't draw. Did anybody think of that?
A tree that's got bark. Bark shows
something. Leaves. Looks like a tree to me.
Defendant also cites the State's statement, “Was it
fair when the people who came up here and testified sat here and
had words put in their mouth by the defense?” Defendant argues
these actions violated state law and defendant's due process
rights.
After an extensive review of each portion of the
transcript to which defendant assigns error, we find no instance
where the trial court failed to adequately control the State's
actions. A prosecutor has the duty to vigorously present the
State's case. See State v. Brock, 305 N.C. 532, 538, 290 S.E.2d
566, 571 (1982). In so doing, the prosecutor may cross-examine a
witness concerning any relevant issue, including the witness'
credibility. N.C.G.S. § 8C-1, Rule 611(b) (2001). It is within
the trial court's sound discretion to ensure that all cross-
examination questions are proper in scope and asked in good
faith. State v. Bronson, 333 N.C. 67, 79-80, 423 S.E.2d 772, 779
(1992). During closing arguments, attorneys are given wide
latitude to pursue their case. State v. Scott, 343 N.C. 313,
343, 471 S.E.2d 605, 623 (1996). It is also within the trial
court's discretion to control these arguments by each attorney.
Id. An appellate court normally will not review the exercise of
the trial court's discretion “unless the impropriety of counsel's
remarks is extreme and is clearly calculated to prejudice the
jury.” State v. Huffstetler, 312 N.C. 92, 111, 322 S.E.2d 110,
122 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985).
This Court takes seriously the need for counsel to
perform professionally in pursuing their case. We refuse to
permit attorneys to disparage or impugn the trial process with
improper actions. State v. Sanderson, 336 N.C. 1, 442 S.E.2d 33
(1994). In the present case, however, defendant has failed to
show the trial court abused its discretion in handling the
State's actions at trial.
This assignment of error is overruled.
In another assignment of error, defendant argues the
trial court erred by allowing impermissible hearsay evidence. We
consider each of defendant's arguments in turn.
First, the State was permitted to ask Betty Barber
about the victim's husband visiting the house on the day of the
murder and whether he said “anything to her at that time that you remember?” Over defendant's objection, the witness testified, “I
think he told her he loved her.”
“Out-of-court statements offered for purposes other
than to prove the truth of the matter asserted are not considered
hearsay.” State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d 168,
219 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
In this instance, Mike McIntyre's statement that he loved Cindy
was properly admitted for a purpose other than to prove its
truth. See N.C.G.S. § 8C-1, Rule 801(c) (2001). The statement
is evidence that Cindy believed a reconciliation was forthcoming
and thus supports Cindy's fear that defendant might try to harm
her or her family. See State v. Bishop, 346 N.C. 365, 378-81,
488 S.E.2d 769, 775-77 (1997). Moreover, the statement supports
a conclusion defendant was motivated to kill by Cindy's desire to
end her relationship with defendant and reconcile with her
husband. Accordingly, the trial court properly admitted the
testimony in issue for a nonhearsay purpose.
Defendant also assigns some significance to Barber
later testifying that the relationship between Cindy McIntyre and
her husband was “rocky” but that they “always seemed to get back
together.” According to defendant, this testimony was given
without personal knowledge. Defendant concedes this testimony
was tested on cross-examination when the witness admitted she did
not live with Cindy McIntyre and her husband and thus did not
know what she meant by “rocky.” Accordingly, we find no
prejudicial error here. Second, defendant points to the State asking Joyce
Burr, “Did Cindy McIntyre tell you in fact that she was
attempting to reconcile with her husband?” Over defendant's
objection, the witness answered, “Yes.” This testimony was
admissible under the state of mind exception to the general
prohibition on hearsay. N.C.G.S. § 8C-1, Rule 803(3) (2001).
Under this exception, a statement is admissible if it applies to
a “declarant's then existing state of mind, emotion, sensation,
or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health).” Id.
The testimony in issue was immediately preceded by
testimony that Cindy McIntyre had said “that she was afraid of
the defendant because he knew that she was going to try to get
back with her husband.” The testimony in issue was an expansion
on the origin of the victim's fear of defendant. The statement
of the victim's intent to reconcile with her husband shows
McIntyre's mental state and provides insight into her
confrontation with defendant. Accordingly, the statement is
admissible not as a recitation of facts but to show state of
mind. See State v. King, 353 N.C. 457, 474-78, 546 S.E.2d 575,
589-91 (2001), cert. denied, __ U.S. __, 151 L. Ed. 2d 1002
(2002).
Defendant also argues the trial court improperly
sustained an objection when defendant asked Ralph Pegram, “[D]id
Mike McIntyre ask you to keep an eye on Cindy and Ted so he could
use that in court over custody of the kids?” Although defendant
made no offer of proof as to the question's potential answer, wenonetheless have tried to review how this question elicited
admissible information. We find this question solicited hearsay
and was improper. Accordingly, we hold the trial court did not
err.
Finally, defendant contends that even if the statements
above were not hearsay, they should have been excluded because
they were irrelevant. As we indicated, these statements had a
relevant, nonhearsay purpose, and thus were properly admitted.
Defendant's assignment of error is without merit.
In another assignment of error, defendant argues the
trial court erred by overruling objections to the State's
argument that distorted the legal standard applicable to the
insanity defense. While defendant's arguments on this issue
involve both jury selection and guilt-innocence, we elect to
address the arguments here for purposes of consistency. We again
consider defendant's specific arguments in turn.
First, during jury voir dire, defendant argues the
State asked a jury panel, “Do you all feel that you could follow
His Honor's instructions with regard to both defenses? But he's
first of all, not guilty at all, period. And that also, he is
not guilty by reason of being insane at the time?” According to
defendant, his objection was overruled. Defendant argues the
State thus misstated the law as cumulative rather than
alternative.
Defendant provides no transcript reference in his brief
to this statement and we find no assignment of error on this
issue. As such, defendant has waived this issue. N.C. R. App.P. 10(a). Nonetheless, we have reviewed this issue and find such
a statement would be a proper attempt by the State to ascertain
if jurors could follow the law concerning defendant's guilt as
well as whether defendant was not guilty by reason of insanity.
The trial court properly instructed the jury following the guilt
phase. We thus find no error here.
Second, during its closing argument, the State said:
Ted Prevatte most assuredly is not, should
not be considered by you to be the poster boy
for perfect mental health. Every expert that
testified . . . can see to the fact that Ted
has some degree of mental health problems.
The difference is, and the question you
have to ask yourself is, does that mental
illness rise to the level of providing an
excuse for him kidnapping two people and
murdering one of them? That's what it boils
down to.
Defendant argues that in this closing argument, the
State essentially asked the jury to make a policy decision about
the importance of the insanity rule. To the contrary, the State
appears to have been arguing that defendant's mental illness did
not alone meet the requirements for legal insanity. See State v.
Franks, 300 N.C. 1, 10, 265 S.E.2d 177, 182 (1980) (evidence of
mental disease or deficit alone does not completely establish
insanity defense); State v. Potter, 285 N.C. 238, 249-51, 204
S.E.2d 649, 657 (1974) (evidence of mental illness does not alone
establish legal insanity). Accordingly, the State made a proper
argument.
Finally, defendant attributes error to the State's
argument to the jurors that if they found defendant insane, they
should “let him go.” According to defendant, combined with theState's prior argument concerning mental illness being an excuse,
this argument implied to the jury that defendant would be able to
freely move throughout society if the jury found him not guilty
by reason of insanity. At the time of this statement, however,
after defendant's objection, the trial court told the jury, “I'll
instruct you on the consequences at a later time.” Indeed, the
trial court did later instruct the jury that “a defendant found
not guilty by reason of insanity shall immediately be committed
to a state mental facility.” The trial court further explained
to the jury the hearing process defendant would go through and
the burden he would have to meet in order to be released.
Accordingly, any alleged error was properly handled via the trial
court's instruction.
This assignment of error is without merit.
In another assignment of error, defendant argues the
State's jury arguments infected the trial with unfairness in that
they asked the jury to find defendant guilty for impermissible
reasons. Defendant cites six arguments from the State's opening
and closing arguments. In many of the instances cited,
defendant's appellate counsel appears to have taken minor
comments from the State out of context in an attempt to create
the illusion of impropriety or prejudice. Nonetheless, we
consider each of defendant's arguments in turn.
As a preliminary matter, we note prosecutors have an
obligation to be zealous advocates and are thus provided wide
latitude in hotly contested cases like the present one. State v.
McCollum, 334 N.C. 208, 227, 433 S.E.2d 144, 154 (1993), cert.denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994); see also State
v. Smith, 352 N.C. 531, 561, 532 S.E.2d 773, 792 (2000), cert.
denied, 532 U.S. 949, 149 L. Ed. 2d 360 (2001). Moreover,
control of arguments is generally left to the trial court's
discretion, and reversal is warranted only where the remark in
issue is extreme and clearly calculated to prejudice the jury.
Huffstetler, 312 N.C. at 111, 322 S.E.2d at 122. We now consider
each of defendant's arguments.
First, the State argued the jury's duty is to enforce
the law. The following portion of the State's closing argument
appears relevant:
Now, ladies and gentlemen, we call it
jury duty. It's not jury spend a few days
off work. It's not jury come up here and
have fun. It's jury duty. Because you have
a job to do. Your job is not done. Your job
is just getting ready to start. You've got
to take everything that you heard back there,
and you've got to decide what the right thing
to do is. You've got to decide whether or
not that man is gonna be accountable for his
actions on June the first of 1993, to enforce
the law.
Now, it's a common misconception that
police officers enforce the law. They don't
enforce the law. Police officers are fact
gatherers. Police officers take pieces of
crime, be they witnesses, victims, evidence,
whatever, and they gather them up. D.A's
office doesn't enforce the law. D.A's office
takes all those pieces that the police
officers bring them, investigators bring to
them, and they put it together. And we show
it to you. Judge doesn't enforce the law.
[DEFENSE COUNSEL]: Objection.
[THE STATE]: Judge is the umpire.
THE COURT: Overruled.
[THE STATE]: His job is to make sure
that that man down there gets a fair trial,
and that the State of North Carolina gets a
fair trial. So who enforces the law? The
answer is obvious. You all enforce the law.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: Without juries composed of
citizens from the community, there's no one
to enforce the law. All the laws in the
books don't mean a thing if nobody enforces
the law. All of the evidence collection and
forensic evaluation means nothing if there
aren't juries to enforce the law. So it's up
to you, ladies and gentlemen. Are you going
to enforce the law? Are you going to hold
him accountable?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[DEFENSE COUNSEL]: That's a
misstatement.
[THE STATE]: Are you going to do your
duty? Ladies and gentlemen, are you going to
do your duty and rise up as one voice, one
voice of the community?
[DEFENSE COUNSEL]: Objection.
Improper.
THE COURT: Sustained.
[THE STATE]: And tell that boy --
[DEFENSE COUNSEL]: Objection.
THE COURT: Wait a minute. Sustained as
to any community argument.
[THE STATE]: Tell this man --
THE COURT: Wait a minute. Don't
consider that, members of the jury.
[THE STATE]: -- that he can get away
with it?
[DEFENSE COUNSEL]: Objection.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: Are you going to tell him
that he's unaccountable, and that what he did
on June the first of 1993 was wrong? Are you
going to do your duty? Are you ready to do
your duty? I think you are. You've got what
you need.
This Court has held it improper for a prosecutor to
“'suggest that the jury is effectively an arm of the State in the
prosecution of the defendant or that the jury is the last link in
the State's chain of law enforcement.'” State v. Lloyd, 354 N.C.
76, 130, 552 S.E.2d 596, 632 (2001) (quoting State v. Elliott,
344 N.C. 242, 285, 475 S.E.2d 202, 222-23 (1996), cert. denied,
520 U.S. 1106, 137 S.E.2d 312 (1997)). Prosecutors are allowed
to outline the function of the various participants in a trial.
Such an argument may properly include statements concerning the
vital importance of jurors to the system of justice and an
admonition that the “buck stops here.” See State v. McNeil, 350
N.C. 657, 687-88, 518 S.E.2d 486, 505 (1999), cert. denied, 529
U.S. 1024, 146 L. Ed. 2d 321 (2000).
In the present case, it appears the State used its
argument to clear up any jury confusion about the
responsibilities of the police, the prosecutors, the judge, and
the jury. The State ultimately sought to ensure the jury
understood that its proper role included holding defendant
accountable. Accordingly, the State's argument remained in line
with this Court's precedent.
Second, defendant cites as error the State's opening
and closing argument where the State said that if the jury founddefendant guilty, it would learn more during sentencing. We hold
that the State's argument merely reemphasized what the jury
already knew, namely, that if defendant was found guilty,
additional evidence would be submitted on the question of
defendant's sentence. This procedural issue had been fully
explained to the jury during jury selection, and it was not error
for the State to refer to this fact during argument.
Third, defendant contends the State's opening argument
included a request that the jurors consider the victim as a
relative and put themselves in the victim's shoes. The following
portion of the State's opening argument appears relevant:
[THE STATE:] You will come to know a
little bit more about Cindy through evidence
presented by the State. You will come to
know that in fact, she had two children. She
worked at Wadesboro Manufacturing. She -- I
believe you will find after listening to all
the evidence, will see that she is not very
different from all of us. She could very
well be a wife of some of you, a daughter to
some of you --
[DEFENSE COUNSEL]: Objection.
[THE STATE]: -- a sister of some of
you.
THE COURT: Sustained.
[THE STATE]: And that like many folks,
she had some imperfections. Some of those
will be that she had some uncertainties
within her own life about her marriage to
Michael. That on June first of 1993, she had
resolved those uncertainties. She and
Michael McIntyre, her husband of 14 years,
had decided to pull family back together.
She had decided to end the relationship that
she had been involved with the defendant in.
Exercising her own free will and her right to
choose is what she did, the evidence will
tend to show.
Arguments that ask the jurors to place themselves in
the victim's shoes are improper. McCollum, 334 N.C. at 224, 433
S.E.2d at 152. In the present case, however, it appears the
State was simply providing some background on the victim. The
State's comment that Cindy could be related to a member of the
jury appears to have been an effort to show Cindy was a typical
community member. There is no indication the State was urging
the jurors to put themselves in Cindy's shoes. As such, the
State's argument was proper.
Fourth, defendant argues the State improperly referred,
during opening and closing arguments, to the lack of consequences
defendant had suffered in the six years since the crimes were
committed. Defendant argues such consequences are irrelevant to
defendant's guilt. Defendant further argues the State improperly
ignored the trial court sustaining defendant's objections to this
line of argument.
When the State's opening and closing arguments are read
in their totality, it is clear the State was suggesting defendant
acted in a planned way and made numerous decisions in the process
of the killing. When the State briefly remarked during opening
statements about the six-year time period, the trial court
immediately admonished the State to stick to the evidence.
Moreover, in our review of the State's opening and closing
arguments, we find no instance where the State referred to the
consequences to defendant as being relevant to the jury's
determination of guilt. Accordingly, we hold that the trial
court properly handled the portions of argument in issue. Fifth, defendant argues the State contradicted the
evidence and argued facts not in evidence. Defendant cites
several examples, and we consider each individually.
Defendant first points to the State's comment that
“[t]here wasn't one witness for the defendant that could speak to
you and look you in the eye and tell you the person that used
this rope and this knot was having a psychotic episode or having
some type of out-of-body experience.” Here, the State was
asserting that no witness could testify as a fact that defendant
was having a psychotic episode at the time of the murder.
Despite the existence of conflicting expert opinion on the issue,
the State was properly pointing out that there was no definitive
evidence to prove an episode took place.
Defendant also contends the State tried to impeach the
insanity defense with the idea that defendant had taken mental
tests several times and knew how to manipulate them. According
to defendant, there was no evidence of this in the record.
Defendant cites the following portion of the State's argument:
Ladies and gentlemen, I pose this
question to you. In those 17 and a half
years that he was down there being evaluated
by those Georgia doctors, how many times do
you think he's taken those tests? The man
knows the game.
[DEFENSE COUNSEL]: Objection.
[THE STATE]: He knows how to accomplish
what he wants.
. . . .
THE COURT: Overruled.
[THE STATE]: He knows how to portray
himself in whatever light helps him out. 17 and a half years of practice makes
perfect, ladies and gentlemen.
Considering the broad evidence of defendant's mental
problems and the evaluations and treatment he received for these
problems, it was proper for the State to argue that defendant had
some expertise portraying his psychological makeup in a favorable
manner. Further, the trial court instructed the jurors that if
their recollection of the evidence differed from that presented
by the attorneys in argument, the jurors should disregard what
the attorneys said and rely solely on their own independent
recollection.
Defendant additionally argues there was no support in
the record for the State's argument that its own expert, Dr.
Robert Rollins, had gathered information from other people in
formulating his opinion. It is helpful to consider this argument
in context:
[THE STATE]: . . . Well, Doctor Rollins
told you he had other stuff, information
gathered by his assistant Mr. Meachum.
Evidence from people who were out there.
[DEFENSE COUNSEL]: Objection. Not
evidence.
[THE STATE]: Evidence from officers.
Evidence from the D.A.'s office.
[DEFENSE COUNSEL]: Objection.
THE COURT: Well, sustained as to people
who were out there. Overruled as to the
remaining.
[THE STATE]: He didn't just talk to the
defendant. He talked to people, contrary to
what they assert.
[DEFENSE COUNSEL]: Objection. That's
not the testimony.
[THE STATE]: And I'll tell you what,
ladies and gentlemen --
THE COURT: Overruled.
[THE STATE]: -- you think about it, and
you decide what you remember him saying.
After our review, we conclude the State did not proceed
with this line of argument after defendant's objection. Rather,
the State asked the jury to consider this issue based on its own
recollection of testimony from the trial. This is in line with
the instruction the trial court properly gave the jurors to base
their deliberations on their own memory of testimony rather than
the attorneys' arguments.
Accordingly, we find the trial court properly handled
the issues raised by defendant. Moreover, the trial court's
instructions cured any potential error.
Finally, defendant argues the State improperly urged
the jury to contrast the court's fair treatment of defendant to
defendant's treatment of the victim. Defendant also contends the
State impugned the integrity of defense counsel and defendant's
witnesses by asking the jury if it was “fair when the people who
came up here and testified sat here and had words put in their
mouth by the defense?” According to defendant, this argument was
irrelevant and inflammatory and penalized defendant's exercise of
his due process right to a fair trial.
The State's remarks concerning the fairness defendant
showed the victim are well within the parameters created by this
Court. See McNeil, 350 N.C. at 688-89, 518 S.E.2d at 505
(“[t]his Court has repeatedly held it is not improper to arguethat defendant, as judge, jury, and executioner, single-handedly
decided the victim's fate.”); Elliott, 344 N.C. at 275-76, 475
S.E.2d at 217 (prosecutor's request that jury give victim a fair
trial “amounted to nothing more than a request that the State be
given equal consideration.”). Similarly, the State's remark
concerning defense counsel putting words in the mouths of
witnesses was proper. The State had a right to respond to
defendant's attacking closing argument. See State v. Trull, 349
N.C. 428, 453, 509 S.E.2d 178, 194 (1998), cert. denied, 528 U.S.
835, 145 L. Ed. 2d 80 (1999). Moreover, the State's argument was
not abusive or ongoing. Rather, our review of the record
indicates the State's comment was isolated and did not deprive
defendant of his right to a fair trial. See State v. Bowman, 349
N.C. 459, 473-74, 509 S.E.2d 428, 437 (1998), cert. denied, 527
U.S. 1040, 144 L. Ed. 2d 802 (1999).
This assignment of error is overruled.
In another assignment of error, defendant contends the
trial court erred in its jury instructions on insanity. The
trial court instructed the jury in a manner virtually identical
to our state's pattern jury instructions:
[S]ince sanity and soundness of mind is the
natural and normal condition of people,
everyone is presumed to be sane until the
contrary is made to appear. This means that
the defendant has the burden of proof on the
issue of insanity. However, unlike the
State, which must prove all the other
elements of the crime beyond a reasonable
doubt, the defendant need only prove his
insanity to your satisfaction. That is, the
evidence taken as a whole must satisfy you
not beyond a reasonable doubt, but simply to
your satisfaction that the defendant was
insane at the time of the alleged offense.
See N.C.P.I.--Crim. 304.10 (1992).
Defendant contends this instruction was ambiguous
because a defendant has the burden of proving insanity by a
preponderance of the evidence. Because the trial court used the
term “prove his insanity to your satisfaction,” defendant
contends the trial court failed to adequately and clearly
instruct the jury on the proper burden of proof.
In State v. Weeks, we considered an instruction almost
identical to the one given in the present case. 322 N.C. 152,
175, 367 S.E.2d 895, 908-09 (1988). In Weeks, we determined the
trial court's refusal to define “satisfaction” did not leave
unbridled discretion in the jury as to defendant's burden of
proof. Id. Similarly, in the present case, we hold “the jury
was properly instructed on the standard of proof needed by
defendant to prove his insanity.” Id. at 175, 367 S.E.2d at 909.
Moreover, we find no merit in defendant's suggestion
that the jury may have been confused by the interchangeable use
of the terms “satisfied,” “convinced,” and “proof beyond a
reasonable doubt.” Based on our review of the record, we
conclude defendant is attempting to create the appearance of
impropriety by stringing together comments from the State and the
trial court which occurred at unconnected times during the trial.
The trial court fully instructed the jury on which standard to
use and specifically told the jury not to use the “beyond a
reasonable doubt” standard in considering whether defendant was
insane. See State v. Ward, 301 N.C. 469, 473-74, 272 S.E.2d 84,87 (1980). In short, there was no risk that the jury applied an
improper standard to its insanity deliberations.
This assignment of error is without merit.
In another assignment of error, defendant argues the
trial court committed plain error by failing to intervene ex mero
motu to prevent the State from commenting on defendant's exercise
of his right to remain silent. Defendant cites two comments by
the State. First, the State said, “There wasn't one witness for
the defendant that could speak to you and look you in the eye and
tell you the person that used this rope and this knot was having
a psychotic episode or having some type of out-of-body
experience.” Second, the State said, “[T]here's not been a
consequence for that man that sits over there who won't even look
you folks in the eye. . . . And hasn't the entire trial.”
Criminal defendants have a constitutional right not to
testify and it is improper for prosecutors to comment on a
defendant's exercise of this right. State v. Mitchell, 353 N.C.
309, 326, 543 S.E.2d 830, 840, cert. denied, ___ U.S. ___, 151 L.
Ed. 2d 389 (2001). However, if a prosecutor's comment on a
defendant's failure to testify was not extended or was a
“slightly veiled, indirect comment on [a] defendant's failure to
testify,” there was no prejudicial violation of the defendant's
rights. Id. at 326, 543 S.E.2d at 841; see also State v. Rouse,
339 N.C. 59, 96, 451 S.E.2d 543, 563 (1994), cert. denied, 516
U.S. 832, 133 L. Ed. 2d 60 (1995). Further, comments on a
defendant's courtroom demeanor are not necessarily comments on a
defendant's silence. State v. Barrett, 343 N.C. 164, 177-78, 469S.E.2d 888, 895-96, cert. denied, 519 U.S. 953, 136 L. Ed. 2d 259
(1996).
In the present case, the State's argument that no
witness could testify that defendant was having a psychotic
episode was merely a comment on the witnesses who had testified.
The State was arguing that no defense witness could testify
concerning defendant's mental state at the time of the killing.
Because we find no direct reference in this comment to
defendant's silence, we hold the trial court did not err by
failing to intervene ex mero motu.
Similarly, as to the State's comment on defendant's
failure to look into the jurors' eyes, we conclude this was
merely a brief reference to defendant's courtroom demeanor. This
comment cannot reasonably be read in a manner that implicates the
defendant's right not to testify. As such, the trial court did
not err in handling this portion of the State's argument.
This assignment of error is without merit.
In another assignment of error, defendant contends the
trial court erred by overruling objections and denying his motion
to strike testimony by a State's witness informing the jurors
about a prejudicial, irrelevant statement that defendant
allegedly made. Defendant's argument pertains to the following
portion of Joyce Burr's testimony:
Q Mrs. Burr, tell the members of the jury
what the defendant told you or told you and
your husband the day before Cindy's death.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A He said that if he could kill the bitch
and get away with it, he would. But he
wasn't, because his mother paid too much
money to get him out of prison in Georgia.
[DEFENSE COUNSEL]: Move to strike.
THE COURT: Overruled.
Q Now, Mrs. Burr, did he tell you who that
-- did he tell you who the person was that he
was referring to as bitch?
A Cindy.
According to defendant, this testimony was improperly
and prejudicially admitted as proof of his other crimes.
Additionally, defendant argues the prejudice from the testimony
was enhanced when the State later repeated the statement and
called attention to it during argument.
Prior to the admission of the testimony in issue, the
trial court held a hearing. Defendant objected to the part of
the statement revealing that his mother paid money to get him out
of prison. The trial court ruled the testimony was relevant and
admissible pursuant to North Carolina Rule of Evidence 403. We
conclude this ruling was not an abuse of the trial court's
discretion.
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). In criminal cases, Rule 401 should be broadly
construed so that all evidence which may shed any light on the
alleged crime is admitted. State v. Cagle, 346 N.C. 497, 506,488 S.E.2d 535, 542, cert. denied, 522 U.S. 1032, 139 L. Ed. 2d
614 (1997). Nonetheless, a trial court should exclude relevant
evidence “if its probative value is substantially outweighed by
the danger of unfair prejudice.” N.C.G.S. § 8C-1, Rule 403
(2001). A trial court's ruling on such an issue will be
disturbed on appeal only if the trial court's decision was so
arbitrary that it could not have been based on reason. Cagle,
346 N.C. at 506-07, 488 S.E.2d at 542.
In analyzing the statement in issue here, we find
considerable probative value in both parts of the statement. The
first part of the statement, in which defendant said he could
kill the victim, showed that defendant had the motivation to kill
the victim. It also revealed that defendant had thought about
killing the victim for some time before the murder occurred. The
second part of the statement, in which defendant said his mother
paid to get him out of prison, allowed the jury valuable insight
concerning defendant's thinking and evaluation prior to the
murder. Hearing both parts of the statement gave the jury the
opportunity to see how defendant was deliberating over whether to
kill the victim. Because defendant's mental state was an issue
at trial, this information was extremely relevant and probative
to the jury's deliberations.
We also must consider the danger of unfair prejudice to
defendant via the admission of the testimony. The testimony did
not reveal why defendant had been in prison or why his mother
paid for his release. Further, our review of the record reveals
defendant, in questioning his own witnesses as well as in closingarguments, disclosed that he had spent time in prison.
Accordingly, we find any prejudice from the admission of the
testimony in issue was not significant enough to warrant the
testimony's suppression. Moreover, because we hold the testimony
was properly admitted, we also hold the State's references to the
testimony were proper.
This assignment of error is overruled.
In another assignment of error, defendant argues the
trial court's instructions unconstitutionally relieved the State
of its burden of proving all elements of the kidnapping crimes
and the evidence was insufficient to support kidnapping as
charged in the indictments.
The indictment for the kidnapping of Matthew McIntyre
alleged defendant confined, restrained, or removed Matthew from
one place to another “for the purpose of facilitating the
commission of a felony, First Degree Murder.” The indictment for
the kidnapping of Cindy McIntyre alleged defendant confined,
restrained, or removed her from one place to another “for the
purpose of facilitating the commission of a felony, First Degree
Murder, and terrorizing” the victim.
The trial court's instructions on the kidnappings
required the State to show inter alia, that defendant “confined
or restrained or removed [the victims] for the purpose of
facilitating [defendant's] commission for murder” of Cindy
McIntyre. The jury returned a verdict finding defendant guilty
of first-degree kidnapping, but did not specify which purpose orpurposes contained in the indictment formed the basis for the
verdict.
Defendant argues his constitutional rights were
violated because the trial court instructed the jury that it must
find the kidnapping was for the purpose of “murder” instead of
“first degree murder,” as specified in the indictment, and
because the trial court failed to instruct the jury that it must
find defendant was “terrorizing” Cindy McIntyre as the indictment
alleged. N.C.G.S. § 14-39(a) provides that a defendant is guilty
of kidnapping if he
shall unlawfully confine, restrain, or remove
from one place to another . . . if such
confinement, restraint or removal is for the
purpose of:
(1) Holding such other person for a
ransom or as a hostage or using
such other person as a shield; or
(2) Facilitating the commission of any
felony or facilitating flight of
any person following the commission
of a felony; or
(3) Doing serious bodily harm to or
terrorizing the person so confined,
restrained or removed or any other
person; or
(4) Holding such other person in
involuntary servitude in violation
of G.S. 14-43.2.
N.C.G.S. § 14-39(a) (2001) (emphasis added).
This Court has held that language in an indictment
following the words “committing a felony” is “mere harmless
surplusage and may properly be disregarded in passing upon its
validity.” State v. Freeman, 314 N.C. 432, 435-36, 333 S.E.2d
743, 745-46 (1985). Similarly, we hold the trial court's
instructions here were adequate and valid. The omission of“first degree” to modify “murder” was neither error nor
prejudicial.
Defendant's contention that the trial court erred in
failing to instruct the jury that it must find defendant was
terrorizing Cindy McIntyre is also without merit. A kidnapping
indictment
must allege the purpose or purposes upon
which the State intends to rely, and the
State is restricted at trial to proving the
purposes alleged in the indictment. Although
the indictment may allege more than one
purpose for the kidnapping, the State has to
prove only one of the alleged purposes in
order to sustain a conviction of kidnapping.
State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986)
(citations omitted). While the indictment for the kidnapping of
Cindy McIntyre listed “terrorizing” as one of the purposes, it
was not necessary for the trial court to include terrorizing in
its instructions. The trial court thus did not err in its
instructions.
Defendant further argues the kidnappings were an
inherent and integral part of Cindy McIntyre's murder and
therefore the conviction for her kidnapping cannot stand. This
argument is also without merit. We have held that “a person
cannot be convicted of kidnapping when the only evidence of
restraint is that 'which is an inherent, inevitable feature' of
another felony,” but evidence of actions constituting additional
restraint can support such a conviction. State v. Beatty, 347
N.C. 555, 559, 495 S.E.2d 367, 369 (1998) (quoting State v.
Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978)). The
additional restraint may consist of actions that increase thevictim's helplessness and vulnerability. See id. at 559, 495
S.E.2d at 369-70. In the present case, the binding and beating
of Cindy McIntyre and the restraint of Matthew McIntyre were not
essential actions necessary to restrain Cindy in order to murder
her, but were additional actions that increased her helplessness
and vulnerability. Accordingly, defendant's assignment of error
is overruled.
In another assignment of error, defendant argues the
trial court erred by failing to declare a mistrial when the State
introduced evidence that defendant escaped from prison while
serving time for a prior murder in Georgia. Defendant also
argues it was error for the trial court to fail to declare a
mistrial when the State introduced evidence about defendant
pulling the trigger in the Georgia murder. However, defendant
points to no specific transcript reference and makes no specific
argument about this alleged error. We therefore only examine the
contention regarding the evidence of the escape. The following
exchange took place during the State's cross-examination of
defense expert witness Dr. Strahl:
Q . . . [I]n your review of the Georgia
Department of Corrections records, were you
aware that [defendant] had escaped while he
was serving time down there in Georgia?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q Were you aware?
A I was not aware, no.
Q That wouldn't change your opinion, would
it?
A In terms of dangerousness to others?
Q In terms of adjusting well to prison
life, being a good inmate.
[DEFENSE COUNSEL]: Objection.
THE COURT: Now, is this contained in
the records that were introduced?
[THE STATE]: Weren't introduced, Your
Honor. I'm asking if he's aware of it.
[DEFENSE COUNSEL]: No, sir.
THE COURT: Well, sustained. Don't
consider the question, members of the jury,
about any prior escape. Can all of you
disregard that?
(Jurors nod their head[s]
affirmatively.)
The decision to grant a motion for a mistrial is within
the discretion of the trial court. State v. McCarver, 341 N.C.
364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110,
134 L. Ed. 2d 482 (1996). A mistrial should be declared only if
there are serious improprieties making it impossible to reach a
fair, impartial verdict. Id. at 383, 462 S.E.2d at 35-36.
“Jurors are presumed to follow a trial court's instructions.”
Id. at 384, 462 S.E.2d at 36.
Here, the trial court sustained defendant's objection
and instructed the jury to disregard the reference to the escape.
Because we assume the jury followed this instruction and
defendant seemed satisfied at the time with the instruction and
did not request a mistrial, the trial court did not err by
failing to declare a mistrial ex mero motu. Accordingly, this
assignment of error is overruled. In another assignment of error, defendant argues the
trial court erred by incorrectly instructing the jury not to
consider defendant's special issue of legal insanity unless the
jury first found defendant was not guilty. Consistent with our
state's pattern jury instructions, the trial court instructed the
jury as follows:
Now, if you find the defendant not
guilty for any reason, you will return a
verdict of not guilty, and will so indicate
on each of the forms. But you will not --
and you will only answer the special issue
that I just read to you if you return a
verdict of not guilty. Now, if you return a
verdict of not guilty, you must answer the
special issue which asks whether you found
the defendant not guilty because you were
satisfied that he was insane. If you found
the defendant not guilty because you were
satisfied that he was insane, answer yes. If
you were not so satisfied, answer no.
See N.C.P.I.--Crim. 304.10 (1992). Defendant argues this
instruction was reasonably likely to mislead the jury to believe
that before it could consider defendant's special issue of legal
insanity, the jury was required to find defendant not guilty.
Defendant's argument is without merit. Prior to the
above referenced instruction, the trial court had instructed the
jury that
when there's evidence which tends to show
that the defendant was legally insane at the
time of the alleged offense, you will
consider this evidence only if you find that
the State has proved beyond a reasonable
doubt each of the things about which I've
instructed you. Even if the State does prove
each of these things beyond a reasonable
doubt, the defendant would nevertheless be
not guilty if he was legally insane at the
time of the alleged offense.
See N.C.P.I.--Crim. 304.10 (1992). The trial court fully
instructed the jury that it was to consider the insanity defense
only if it found the State had proved its case beyond a
reasonable doubt. Taken in context with the trial court's
instructions on the insanity defense, there was no error.
This assignment of error is without merit.
SENTENCING PROCEEDING
In another assignment of error, defendant argues the
trial court erred by allowing the State to arbitrarily decline to
present evidence of the aggravating circumstance that defendant
had previously been convicted of another capital offense which is
the statutory aggravating circumstance set out in N.C.G.S. §
15A-2000(e)(2), which refers in pertinent part to an aggravating
circumstance where “[t]he defendant had been previously convicted
of another capital felony.” N.C.G.S. § 15A-2000(e)(2) (2001).
N.C.G.S. § 15A-2000(e)(3) refers in pertinent part to
an aggravating circumstance in which “[t]he defendant had been
previously convicted of a felony involving the use or threat of
violence to the person.”
Defendant was found guilty of murder in 1974 in
Georgia. In the present case, the State did not pursue a prior
capital felony aggravating circumstance under N.C.G.S. §
15A-2000(e)(2) but instead proceeded as though the offense was a
prior violent felony under N.C.G.S. § 15A-2000(e)(3). The
prosecutor said, “We've been thinking of doing this since last
spring just as a way of simplifying [issues regarding theconstitutionality of the Georgia statute under which defendant
was sentenced].”
Defendant relies on this Court's decision in State v.
Case where we held that if an aggravating circumstance could be
supported by the evidence, the State must submit it. 330 N.C.
161, 163, 410 S.E.2d 57, 58 (1991). In Case, this Court held:
It was error for the State to agree not
to submit aggravating circumstances which
could be supported by the evidence. . . . If
our law permitted the district attorney to
exercise discretion as to when an aggravating
circumstance supported by the evidence would
or would not be submitted, our death penalty
scheme would be arbitrary and, therefore,
unconstitutional. Where there is no evidence
of an aggravating circumstance, the
prosecutor may so announce, but this
announcement must be based upon a genuine
lack of evidence of any aggravating
circumstance.
Id. at 163, 410 S.E.2d at 58.
The facts of the present case are clearly
distinguishable from Case. Here, the State requested a statutory
aggravating circumstance based on the evidence of the prior
murder in Georgia. The (e)(3) circumstance was requested and
submitted in lieu of the (e)(2) circumstance. The integrity of
the capital sentencing scheme, which was at issue in Case, is not
at issue here. Whether it was styled as a capital felony or as a
violent felony, the fact that defendant had been convicted
previously of murder was submitted to the jury for its
consideration. Defendant's assignment of error is without merit.
In another assignment of error, defendant argues the
trial court erred by instructing the jury about a sentencing
option not authorized by statute. In June 1993, when defendantcommitted the murder, the maximum sentence for first-degree
murder was either death or life imprisonment with the possibility
of parole. N.C.G.S. § 15A-1371(a1) (Cum. Supp. 1993) (amended
1993, effective 1995). The trial court instructed the jury only
that if it found defendant guilty of first-degree murder, it
would have to choose between life imprisonment without parole and
the death penalty. Defendant did not object to and in fact
invited the trial court's error by requesting the instruction on
life imprisonment without parole. Further, defendant repeatedly
urged the jury to recommend a sentence of life imprisonment
without parole. Defendant now argues the jury may have been
influenced to decide that life imprisonment without parole would
be a worse punishment than death because the jury heard defendant
was mentally disturbed, suicidal, masochistic, unhappy and was
living a tortured life in prison.
“[T]his Court has consistently denied appellate review
to defendants who have attempted to assign error to the granting
of their own requests.” State v. Wilkinson, 344 N.C. 198, 213,
474 S.E.2d 375, 383 (1996). A defendant cannot complain about a
jury instruction that he specifically requests. Id.; State v.
McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991).
Defendant specifically requested and was granted an
instruction on life imprisonment without parole. This was
invited error, and thus defendant's argument is misplaced.
Further, the prohibition against ex post facto laws was
not violated as defendant claims. Here, defendant was sentenced
to the maximum punishment of death, which was provided by law atthe time of the murder. Accordingly, defendant has no ex post
facto claim. This assignment of error is overruled.
In another assignment of error, defendant argues the
trial court erred by failing to specify and define the alleged
crime of violence in the statutory aggravating circumstance
submitted pursuant to N.C.G.S. § 15A-2000(e)(11). Defendant
argues this makes the aggravating circumstance vague and
overbroad in violation of the Eighth Amendment. Further, because
the trial court did not instruct the jury on which crime
constituted the course of conduct, defendant now argues it is
possible that the jury relied on kidnapping to find the (e)(11)
circumstance.
During the jury charge, the trial court instructed the
jury as follows:
And finally, number four, 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. Now, a murder is part of
such a course of conduct if you find from the
evidence beyond a reasonable doubt that in
addition to killing the victim, the
defendant, on or about the alleged date, was
engaged in a course of conduct which involved
the commission of another crime of violence
against another person, and that this other
crime was included in the same course of
conduct in which the killing of the victim
was also a part, you would find this
aggravating circumstance and would so
indicate by having your foreperson write yes
in the space provided. If you do not so find
or have a reasonable doubt as to one or more
of these things, you will not find this
aggravating circumstance, and will so
indicate by having your foreperson write no
in that space.
See N.C.P.I.--Crim. 150.10 (1993). At the charge conference, during the discussion of the
(e)(11) aggravating circumstance, the following exchange took
place:
THE COURT: Was this murder part of the
course of conduct in which the defendant
engaged, and did that course of conduct
include the commission by the defendant of a
crime of violence against another person. Or
would you rather it read “other crimes of
violence.”
[THE STATE]: Other crimes of violence,
Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: Note our objection
to that and point out that [defendant has]
already been convicted of kidnapping, and
that's the only other crime against the other
persons, kidnapping of Matthew and kidnapping
of Cynthia. And I think that's allowing the
use of double of -- you know, twice, using it
twice.
THE COURT: Okay. Well, assault. He
assaulted him with a firearm, though, so, and
that's for the jury to say and determine, I
think. I think the evidence supports it.
Defendant argues that the trial court promised to submit a theory
of assault to constitute the other violent crime in the course of
conduct. Because the trial court did not submit such a theory,
defendant argues the error is preserved for this Court's review
on the merits.
After reviewing the transcript, we conclude the trial
court never promised to specify a crime to constitute the course
of conduct. Further, defendant did not object to the trial
court's jury instruction. We therefore review this issue under a
plain error standard, under which reversal is justified when the
claimed error is so basic, prejudicial, and lacking in itselements that justice was not done. State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983).
We have held that the term “course of conduct” is not
“unconstitutionally vague or without definition.” State v.
Williams, 305 N.C. 656, 685, 292 S.E.2d 243, 260-61, cert.
denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982). The trial court
here used an instruction that was virtually identical to a
pattern jury instruction. N.C.P.I. Crim.--150.10 (1993).
The trial court's instruction on the (e)(11)
aggravating circumstance was sufficient. Defendant gives no
authority showing the trial court must specify the crime or
crimes to support the (e)(11) aggravating circumstance, and this
Court has approved the type of instruction used by the trial
court here.
Further, there was no possibility here of double-
counting. The trial court instructed the jury it could find the
(e)(5) aggravating circumstance that defendant committed the
murder while engaged in the commission of kidnapping if it found
that while killing the victim,
the defendant was confining or restraining or
removing Cindy McIntyre from one person --
place to another without her consent, and
that this was for the purpose of facilitating
his commission of murder, or for the purpose
of terrorizing her, and that this confinement
or restraint or removal was a separate
complete act, independent of and apart from
the murder . . . .
Later, the trial court instructed the jury that it could find the
(e)(11) aggravating circumstance if it found defendant was in a
course of conduct involving another crime of violence againstanother person. Thus, the (e)(5) aggravating circumstance was
limited to the kidnapping of the victim while the (e)(11)
aggravating circumstance was limited to the kidnapping and
assault of the victim's son. Accordingly, defendant's assignment
of error is overruled.
In another assignment of error, defendant argues the
trial court erred by incorrectly instructing the jury that a
single crime of violence could support the (e)(11) aggravating
circumstance. Defendant argues that the (e)(11) language
demonstrates clear legislative intent to limit the aggravating
circumstance to cases where the jury finds there is no reasonable
doubt that the defendant committed multiple crimes of violence
during the course of conduct.
As discussed above, the trial court instructed the jury
on the (e)(11) aggravating circumstance in a manner virtually
identical to our state's pattern jury instructions. See
N.C.P.I.--Crim. 150.10 (1993). The following portion of the
instruction appears relevant:
Now, a murder is part of such a course of
conduct if you find from the evidence beyond
a reasonable doubt that in addition to
killing the victim, the defendant, on or
about the alleged date, was engaged in a
course of conduct which involved the
commission of another crime of violence
against another person, and that this other
crime was included in the same course of
conduct in which the killing of the victim
was also a part, you would find this
aggravating circumstance and would so
indicate by having your foreperson write yes
in the space provided.
Defendant's argument is without merit. This Court has
approved of this instruction in other cases. State v. Garner,340 N.C. 573, 594-95, 459 S.E.2d 718, 729-30 (1995), cert.
denied, 516 U.S. 1129, 133 L. Ed. 2d 872 (1996); State v. Hill,
331 N.C. 387, 418-19, 417 S.E.2d 765, 780-81 (1992), cert.
denied, 507 U.S. 924, 122 L. Ed. 2d 684 (1993). In Hill, the
trial court instructed the jury as follows:
If you find from the evidence beyond a
reasonable doubt that, in addition to killing
the victim, the defendant on or about the
alleged date was engaged in a course of
conduct which involved the commission of
another crime of violence against another
person and that these other crimes [sic] were
included in the same course of conduct in
which the killing of the victim was also a
part, you would find this aggravating
circumstance.
Hill, 331 N.C. at 418, 417 S.E.2d at 781 (emphasis added).
The instruction given by the trial court in Hill was
substantially the same as that given in the present case. In
Hill, this Court explicitly approved of the trial court's
instruction, holding that “the terms 'crime' and 'person' in
their singular forms in the challenged instruction . . . tended,
in light of the evidence in the present case, to indicate that
the jury could . . . consider only the defendant's attempt to
kill Mrs. Hill [a victim other than the victim of the murder for
which the defendant was being tried] on 10 January 1990 and not
other events.” Id. at 418-19, 417 S.E.2d at 781. A trial court
may properly instruct the jury on (e)(11) by limiting the jury's
consideration to the conduct involved in one other crime. Id. at
419, 417 S.E.2d at 781.
Further, we have held that evidence of one other crime
is sufficient to submit the (e)(11) aggravating circumstance. State v. Rogers, 316 N.C. 203, 234, 341 S.E.2d 713, 731 (1986),
overruled on other grounds by State v. Gaines, 345 N.C. 647, 483
S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997),
and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).
In Rogers, there was evidence that after killing one victim, the
defendant fired his weapon at another man intending to kill him.
Id. This Court held that “[t]he jury, by returning guilty
verdicts, found beyond a reasonable doubt that [the defendant
murdered one man and assaulted another man and] that the trial
court properly submitted this [(e)(11)] aggravating circumstance
to the jury for its consideration.” Id.
In the present case, there was substantial evidence
that defendant committed two violent crimes against Matthew
McIntyre. While accosting Cindy McIntyre, defendant assaulted
Matthew McIntyre by pointing a gun at his head and kidnapped
Matthew by forcing him into a small bathroom and locking the door
so he could not get out. The jury may have used either or both
of these crimes against Matthew to support the (e)(11)
aggravating circumstance. This assignment of error is overruled.
In another assignment of error, defendant argues that
the trial court erred by submitting the aggravating circumstance
that the murder was especially heinous, atrocious, or cruel
pursuant to N.C.G.S. § 15A-2000(e)(9) without sufficient evidence
in the record. At the charge conference, defense counsel argued
the case did not involve prolonged physical or psychological
torture, but the trial court disagreed. In deciding whether to
submit the (e)(9) aggravating circumstance, “the evidence must beconsidered in the light most favorable to the State, and the
State is entitled to every reasonable inference to be drawn
therefrom.” State v. Hamlet, 312 N.C. 162, 175, 321 S.E.2d 837,
846 (1984). To find this aggravating circumstance, the murder
must be especially heinous, atrocious, or cruel. State v.
Stanley, 310 N.C. 332, 336-37, 312 S.E.2d 393, 396 (1984). The
(e)(9) aggravating circumstance can be submitted when the killing
is agonizing or dehumanizing to the victim; when the killing is
conscienceless, pitiless, or unnecessarily torturous to the
victim; or when the murder shows the defendant's mind was
unusually depraved, beyond the depravity normally present in
first-degree murder. Gibbs, 335 N.C. at 61-62, 436 S.E.2d at
356.
We hold that the evidence in this case justified the
submission of the (e)(9) aggravating circumstance. The jury
could have found this murder to be particularly heinous,
atrocious, and cruel because much evidence showed the murder was
pitiless and unnecessarily tortuous and that it dehumanized the
victim. Defendant attacked the victim in the presence of the
victim's ten-year-old son. Defendant then psychologically
tortured the victim by threatening her son and locking him in a
bathroom. The victim did not know if defendant would kill her
son as well. Defendant bound the victim's hands with rope and
tape, forced her into a car, pulled her from the car, struck her
multiple times, and slammed her head into the car. She screamed
for help and begged for her life, but defendant shot her as she
tried to run away. In light of this overwhelming evidence, wehold that the (e)(9) aggravating circumstance was properly
submitted to the jury.
This assignment of error is overruled.
In another assignment of error, defendant argues the
trial court erred by not granting defendant's motion to strike
the death penalty. Defendant argues that North Carolina's
capital punishment scheme fails to allow for discretion to choose
not to seek the death penalty and is thus unconstitutional.
Defendant's argument is without merit.
A capital punishment system must allow for the exercise
of discretion. McCleskey v. Kemp, 481 U.S. 279, 311-12, 95 L.
Ed. 2d 262, 291 (1987); Woodson v. North Carolina, 428 U.S. 280,
300-04, 49 L. Ed. 2d 944, 958-61 (1976). This Court has held the
required discretion is satisfied by the guided discretion given
to juries who sentence defendants in capital cases in North
Carolina:
While it is true that the present statute
empowers the jury in effect to impose
sentence upon the defendant, that decision is
not made blindly. No defendant may be
sentenced to death unless and until the jury
finds at least one statutory aggravating
circumstance to exist beyond a reasonable
doubt which outweighs any mitigating
circumstance in a sufficiently substantial
manner so as to call for the death penalty.
No aggravating circumstance which is not
provided by the language of the statute may
be considered by the jury in imposing
sentence.
Barfield, 298 N.C. at 351-52, 259 S.E.2d at 542.
Further, this Court has repeatedly held that our
capital punishment system is constitutional despite theprosecutor's possession of broad discretion. See State v. Ward,
354 N.C. 231, 245, 555 S.E.2d 251, 261 (2001).
The trial court did not err by denying defendant's
motion to eliminate the death penalty.
Defendant's assignment of error is overruled.
In another assignment of error, defendant argues that
the trial court erred by overruling defendant's objections to the
State's sentencing arguments.
During closing argument, the State emphasized that
defendant had been previously convicted for the Georgia murder
and that the only way to ensure defendant would not murder again
was to return a death verdict:
[THE STATE]: One murder is enough. One
murder is way too many. Two is
unconscionable. You also heard at
sentencing, this was the watch that came off
of James Rouse and off of that man's buddy.
You also saw and held this picture. And
there he stands posing just like a proud
peacock posing in front of James Rouse's car,
holding this like he's proud of himself.
Like he's proud of himself, folks. Hold him
accountable.
And what did he do down there in
Georgia? That's what's left of James Rouse
when the defendant over there is through
robbing -- robbing and killing him. You saw
these pictures. Because you know that in
Georgia, March 1974, that man over there,
with this right here, put it to the base of
his skull.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: Right like that, right
like that, mashing into the base of his skull
just like I've got it, pulled the trigger,
and did that. That's the prior violent
felony that we're asking you all to consider.
Defendant argues that there was no evidence defendant
personally wielded the shotgun in the prior murder or shot victim
Rouse, and that instead the evidence showed defendant's
codefendant wielded the gun at the time of their capture and
arrest.
Evidence at the penalty phase of the trial revealed the
following about the prior murder: On 7 March 1974, deputies from
the Anson County Sheriff's Office pursued defendant and another
man in a small blue station wagon; the passenger fired at the
officers with a .22-caliber handgun and a twelve-gauge long-
barrel shotgun; during the chase, the passenger threw a twelve-
gauge sawed-off shotgun out the window; after apprehending
defendant and the passenger, officers found a Polaroid photograph
in the station wagon which showed defendant standing in front of
the car holding a handgun and the sawed-off shotgun; the body of
James Rouse was found in Georgia in March 1974 and Rouse had
suffered a close contact wound at the base of his neck; the car
defendant was driving when arrested and which was also depicted
in the Polaroid photograph was the victim's car; and a shotgun
shell found inside the car was fired from the sawed-off shotgun.
This Court has held that arguments are within the
control and discretion of the trial court. State v. Fullwood,
343 N.C. 725, 740, 472 S.E.2d 883, 891 (1996), cert. denied, 520
U.S. 1122, 137 L. Ed. 2d 339 (1997).
Counsel is permitted to argue the facts which
have been presented, as well as reasonable
inferences which can be drawn therefrom.
Conversely, counsel is prohibited from
arguing facts which are not supported by the
evidence. These principles apply not only toordinary jury arguments, but also to
arguments made at the close of the sentencing
phase in capital cases.
Id.
In the present case, the evidence showing defendant
posing in front of the Georgia murder victim's car and holding
the weapon used to kill that victim permits a reasonable
inference that defendant was the shooter.
Defendant argues other statements by the prosecution
heightened the prejudice of referring to the prior murder. We
conclude simply that defendant was convicted of the Georgia
murder, and the State had every right to refer to it during
closing argument.
Defendant further argues that his rights were violated
when the trial court allowed the State to argue that the jurors
were a prosecutorial arm of the government as follows:
[THE STATE]: You, ladies and gentleman,
13 most important people in this courthouse.
You are the 13 most important people in this
county. Today, you are the law. You are
justice. From Richfield to Albemarle, from
Oakboro to Badin, you 13 people are the law
in this county.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: Now, the question is, what
are you going to tell that man sitting down
there when you go back there to deliberate?
What are you going to tell him? Are you
going to tell him, it's alright, forget about
that stuff in Georgia, forget about the
nature of this killing, send him off to
prison? Or are you going to say, fooled me
once, shame on you, fooled me twice, shame on
me.
Ladies and gentlemen, the only thing,
the only thing it takes for evil to triumph,
is for good people to do nothing. Today is
your day to do something. Today is your day
to be justice.
In examining a similar closing argument in State v.
Brown, 320 N.C. 179, 203, 358 S.E.2d 1, 18, cert. denied, 484
U.S. 970, 98 L. Ed. 2d 406 (1987), this Court held such an
argument was proper. In Brown, the prosecutor argued
You know something, Ladies and Gentlemen
of the Jury, today you are the somebody that
everybody talks about, and justice is in your
lap. The officers can't do any more. The
State can't do any more. You speak for all
the people of the State of North Carolina as
to this bloody murder in the first degree.
Id. There, we held that argument did
no more than remind the jurors that “the buck
stops here” and that for purposes of
defendant's trial, they are the voice and
conscience of the community. Nor is there
any improper suggestion that the jury is the
last link in the State's chain of law
enforcement. The jury is merely admonished
of its general responsibility impartially to
assimilate the evidence of aggravating and
mitigating circumstances, to weigh them, and
to recommend defendant's sentence
accordingly.
Id. at 204, 358 S.E.2d at 18 (citations omitted). Here, as in
Brown, the State merely told the jury that it was the voice and
conscience of the community for purposes of defendant's trial.
This argument was proper.
Defendant additionally argues that it was error for the
trial court to overrule an objection to the following argument:
[THE STATE]: He's not here from some
fluke of circumstance, ladies and gentlemen.
He's not here because of some external powers
being exerted on him. He's here because of
the choices he's made throughout the courseof his life that lead him right here. And
ladies and gentlemen, when they stand up here
and they talk to you about the State and its
thirst for vengeance, about how we're looking
for revenge, I want you to remember one
thing: That that man signed his own death
warrant --
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: -- on June the first of
1993. And he signed it in the blood of Cindy
McIntyre. He's not here because of you.
He's not here because of us. He's here
because of him. And you remember that.
Because of the choices that he has made, two
people are no longer with us. The choices he
has made throughout his life. And now he
faces the consequences.
In State v. Artis, the State made a similar argument
that this Court analyzed and found to be proper. 325 N.C. 278,
328-29, 384 S.E.2d 470, 499 (1989), sentence vacated on other
grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). There the
State argued:
Today is judgment day. Who wrote that
judgment, Ladies and Gentlemen of the Jury?
Are you going to write it? You don't write
anything. This man sitting right here wrote
his own judgment in this case.
. . . .
He wrote his own judgment in this case
when he broke the law, when he killed and
murdered [the victim]. He passed judgment on
himself. He wrote his own death warrant,
which is now for you to sign and, therefore,
make it lawful.
Id. at 328, 384 S.E.2d at 499. As in Artis, the State's argument
here simply emphasizes that defendant chose to take another's
life. Because nothing in the argument relieves the jury of itsresponsibility of fairness and impartiality, the trial court did
not err by permitting this argument.
Further, defendant argues his rights were violated by
various portions of the state's closing arguments. Although the
majority of defendant's concerns relate to the sentencing
proceeding, defendant also refers to some arguments from the
guilt-innocence phase which we will address here.
During the guilt-innocence phase of the trial, the
State argued the jury should find defendant guilty in order to do
justice for the victim and her family and to do justice for the
family of the victim of the Georgia murder. The State argued as
follows:
[THE STATE]: . . . This kind of case,
the loss is unique. It's permanent. It's
devastating for these folks here.
[DEFENSE COUNSEL]: Objection.
[THE STATE]: It's devastating, of
course --
THE COURT: Overruled.
[THE STATE]: -- for Cindy McIntyre.
There is not gonna be a spot on your jury
verdict that says, “We, the members of the
jury, wish that we could give Cindy McIntyre
back her life.”
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: There's not going to be a
spot on this verdict sheet for that.
Although as much as you wish there could be,
there isn't one. After the defendant, after
this human wrecking ball had careened through
the lives of Cindy McIntyre and her family
and done that damage, what is the testimony
about what he did? Folks, he just got in his
car and spun away.
The State further argued that the case was
about the horror, pain, consequence that
these good people have felt every day of
their lives --
[DEFENSE COUNSEL]: Objection.
[THE STATE]: -- since June first of
1993.
THE COURT: Overruled.
[THE STATE]: It's a pain that's not
going away. You can't bring [the victim]
back. But there is something you can do.
You can give these people, and you can give
Cindy McIntrye's memory some closure.
[DEFENSE COUNSEL]: Objection.
Improper.
[THE STATE]: You can end this.
THE COURT: Well, sustained as to the
family.
[THE STATE]: You can do the right thing
here. And you will do the right thing here.
Ask you to find the defendant guilty of first
degree murder, and nothing less, based on
both premeditation and deliberation.
Defendant also objects to the State's admonishment
during sentencing closing argument of “don't you forget what this
case is about . . . . It's not about him. It's about her. And
don't forget it.” The State further argued:
When you deliberate this issue, this
fourth and final issue, and you're trying to
find out for yourselves whether or not the
aggravating circumstances are sufficiently
substantial, I'd ask you to consider these
things: First of all, would the family of
James Rouse say that this was sufficiently
substantial?
[DEFENSE COUNSEL]: Objection.
[THE STATE]: Would the family of Cindy
McIntyre --
THE COURT: Well, sustained.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained as to the family
of Rouse. Don't consider that ladies and
gentlemen.
[THE STATE]: It will be up to you to
decide, ladies and gentlemen of the jury,
what is sufficiently substantial . . . .
[Y]ou can do justice not only for yourselves,
but for Cindy McIntyre.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: You can do justice for
James Rouse.
[DEFENSE COUNSEL]: Objection.
THE COURT: Well, sustained as to James
Rouse, members of the jury.
[THE STATE]: You can do justice for the
defendant. Because your answer should be
death.
Defendant also argues that the following comments made
by the State during the sentencing argument were improper:
Ladies and gentleman, Cindy is gone through
the actions of that man. Cindy McIntyre is
gone. But her spirit is here.
[DEFENSE COUNSEL]: Objection.
[THE STATE]: And it's been here
throughout this whole trial.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: Ladies and gentlemen, you
saw it. You saw it in the courage of that
boy right there when he took the witness
stand, told you the best that he could
remember about his momma's last moments. You
saw her spirit when Cindy's momma took the
stand and told you about her trying to puther family back together. She's been here,
Cindy. And you've heard her. She's speaking
to you now.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: She speaks to you, ladies
and gentlemen, as clear as that church bell
rings down there on a crisp February morning.
And what is she saying? She's saying, do the
right thing. Do justice. Do it for her.
A prosecutor may properly argue that the victim's death
represents a unique loss to the victim's family. Payne v.
Tennessee, 501 U.S. 808, 825-27, 115 L. Ed. 2d 720, 735-36
(1991); State v. Gregory, 340 N.C. 365, 426-27, 459 S.E.2d 638,
673-74 (1995), cert. denied, 517 U.S. 1108, 134 L. Ed. 2d 478
(1996). Further, a prosecutor may argue the jury should do
justice for the victim and the victim's family if the argument
does not specifically relate to the family's opinions about the
defendant or the crime. State v. Laws, 325 N.C. 81, 105-06, 381
S.E.2d 609, 623 (1989), sentence vacated on other grounds, 494
U.S. 1022, 108 L. Ed. 2d 603 (1990).
In the present case, the State merely argued that the
family suffered a unique loss and urged the jury to do justice.
The reference to the victim's spirit being at the trial was
nothing more than a reference to remaining family members and
their need for justice. Defendant's argument is without merit.
Defendant also argues his rights were violated because
the State asked the jury to penalize defendant for presenting
mitigating circumstances. While arguing to the jury thatdefendant must be held accountable for his actions, the State
argued:
There's going to be evidence --
arguments about mitigating circumstances.
Well, when you go back there, when you go
into this room and begin to deliberate the
fate of the defendant, ask yourselves well,
was the defendant's alcohol abusive father in
the yard of Cindy McIntyre cheering him on?
[DEFENSE COUNSEL]: Objection.
[THE STATE]: Go, Ted, go.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
The State later argued defendant had to face the
consequences for his actions:
Because of the choices that he has made, two
people are no longer with us. The choices he
has made throughout his life. And now he
faces the consequences. And even today,
after 20 years of killing, robbing,
kidnapping, shooting and mayhem, he tries to
escape his fate by presenting you --
[DEFENSE COUNSEL]: Objection.
[THE STATE]: -- with mitigating
circumstances.
THE COURT: Overruled.
This Court has held that “[p]rosecutors may
legitimately attempt to belittle or deprecate the significance of
a mitigating circumstance.” State v. Billings, 348 N.C. 169,
186-87, 500 S.E.2d 423, 433-34 (holding a prosecutor's argument
urging the jury to reject mitigating circumstances because many
people have the same problems was proper), cert. denied, 525 U.S.
1005, 142 L. Ed. 2d 431 (1998); State v. Larry, 345 N.C. 497,
528-29, 481 S.E.2d 907, 925 (holding a prosecutor's comment thata mitigating circumstance was an “excuse” for the defendant's
crime was proper), cert. denied, 522 U.S. 917, 139 L. Ed. 2d 234
(1997); see also State v. Heatwole, 344 N.C. 1, 21, 473 S.E.2d
310, 320 (1996) (holding the following statement by a prosecutor
to the jury was proper: “You may find the defendant suffers from
a serious mental illness. So what.”), cert. denied, 520 U.S.
1122, 137 L. Ed. 2d 339 (1997).
The State in this case properly belittled the
mitigating circumstances submitted by defendant. The State
argued that the circumstances should not be an excuse for
defendant to avoid the consequences of his actions. It was not
error to permit these arguments.
Defendant's assignment of error is overruled.
In another assignment of error, defendant argues the
trial court erred when it reinstructed the jury on the definition
of a mitigating circumstance. In its original instructions on
mitigating circumstances, the trial court's instructions mirrored
the North Carolina Pattern Jury Instructions:
Issue two is, do you find from the
evidence the existence of one or more of the
following mitigating circumstances. Now, 25
possible mitigating circumstances are listed
on the form. And you should consider each of
them before answering issue two. Now, a
mitigating circumstance is a fact or a group
of facts which do not constitute a
justification or excuse for a killing, or
reduce it to a lesser degree of crime than
first degree murder, but which may be
considered as extenuating or reducing the
moral culpability of the killing, or making
it less deserving of extreme punishment than
other first degree murders.
Now, our law identifies several possible
mitigating circumstances. However, inconsidering issue two, it would be your duty
to consider as a mitigating circumstance any
aspect of the defendant's character or
record, and any of the circumstances of this
murder that the defendant contends is a basis
for a sentence less than death, and any other
circumstances arising from the evidence which
you deem to have mitigating value.
See N.C.P.I.--Crim. 150.10 (1993).
During sentencing deliberations, the jury asked, “The
term to have a mitigating value, we're a little bit unsure of
exactly what that term means.” The trial court reinstructed the
jury as follows:
A mitigating circumstance is a fact or group
of facts which do not constitute a
justification or excuse for a killing or
reduce it to a lesser degree of crime than
first degree murder, but which may be
considered as extenuating or reducing the
moral culpability of the killing, or making
it less deserving of extreme punishment than
other first degree murders.
This instruction was virtually identical to the instruction
provided in our state's pattern jury instructions. See N.C.P.I.-
-Crim. 150.10 (1993).
Defendant argues this reinstruction was error because
the jurors were concerned about how much value they could give
particular statutory or nonstatutory mitigating circumstances,
and the trial court should have told the jurors “that they could
give the facts presented to them whatever mitigating value or
weight they wanted and that statutory mitigating circumstances
must be given some value.”
In State v. Jaynes, the trial court instructed the jury
about mitigating circumstances by saying that A number of mitigating circumstances
listed on the form have been submitted to the
jury for its consideration; the same being
(1) through and including (37). Now as to
these listed circumstances, it is for you to
determine from the circumstances and the
facts in this case whether or not any listed
circumstance has mitigating effect. And if
one or more of you should determine by a
preponderance of the evidence that the
mitigating circumstance listed exists and
that it has mitigating value, then you would
find that it existed and answer so. If none
of you finds that, then you would indicate,
no, as to that.
342 N.C. 249, 285, 464 S.E.2d 448, 470 (1995) (alteration in
original), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080
(1996). The trial court in Jaynes further instructed the jurors
that they must determine whether or not the listed circumstance
had mitigating effect. Id. This Court held the trial court
erred because it “told jurors that they could elect to give no
weight to statutory mitigating circumstances they found to
exist.” Id. at 286, 464 S.E.2d at 470.
In State v. Davis, 349 N.C. 1, 506 S.E.2d 455 (1998),
cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999), a case
where the jury instructions were similar to those given in the
case before us, this Court held that the trial court's
instructions on mitigating circumstances were unlike those given
in Jaynes and were proper. Id. at 54-55, 506 S.E.2d at 484-85.
We held that
the trial court properly informed the jurors
that in order to find a statutory mitigating
circumstance to exist, all they must find is
that the circumstance is supported by a
preponderance of the evidence. However,
unlike statutory mitigating circumstances,
the trial court instructed the jurors that in
order to find nonstatutory mitigatingcircumstances, they must (1) find by a
preponderance of the evidence that the
circumstance existed, and (2) find that the
circumstance has mitigating value. These
instructions properly distinguished between
statutory and nonstatutory mitigating
circumstances and informed the jurors of
their duty under the law.
Id. at 56, 506 S.E.2d at 485.
In the present case, the trial court followed the North
Carolina Pattern Jury Instructions and instructed the jury about
each statutory and nonstatutory mitigating circumstance. The
trial court made it clear that statutory and nonstatutory
mitigating circumstances were different. When referring to the
statutory mitigating circumstances, the trial court instructed
the jury:
If one or more of you finds by a
preponderance of the evidence that this
circumstance exists, you would so indicate by
having your foreperson write yes in the space
provided after this mitigating circumstance
on the form. If none of you find this
circumstance to exist, you would so indicate
by having your foreperson write no in that
space.
See N.C.P.I.--Crim. 150.10 (1993).
When referring to the nonstatutory mitigating
circumstances, the trial court instructed the jury:
If one or more of you finds by a
preponderance of the evidence that this
circumstance exists, and also is deemed
mitigating, you would so indicate by having
your foreperson write yes in the space
provided after this mitigating circumstance
on the form. If none of you find the
circumstance to exist, or if none of you deem
it to have mitigating value, you would so
indicate by having your foreperson write no
in that space.
See N.C.P.I.--Crim. 150.10 (1993). Additionally, the punishment recommendation form
clearly differentiated between findings necessary for the jury to
find statutory and nonstatutory mitigating circumstances. For
each statutory mitigating circumstance, next to the blank in
which the jury foreperson was to write “yes” or “no,” the
instructions specified “one or more of us finds this mitigating
circumstance to exist.” For each of the nonstatutory mitigating
circumstances, next to the blank in which the jury foreperson was
to write “yes” or “no,” the instructions specified “one or more
of us finds this circumstance to exist and deem it to have
mitigating value.”
After a review of the record, we hold that the trial
court's instructions here were not like those given in Jaynes.
The trial court here never indicated to the jurors that they
could give no weight to statutory mitigating circumstances they
found to exist. The trial court fully and completely explained
to the jurors their duties regarding statutory and nonstatutory
mitigating circumstances. Defendant failed to object to the
reinstruction after it was given. Following the trial court's
reinstruction, the jury was able to reach a verdict without
further inquiry.
This assignment of error is overruled.
In another assignment of error, defendant argues the
trial court committed plain error by instructing the jury that it
was not to make any factual inferences from his rulings. The
trial court gave the jury peremptory instructions on mitigating
circumstances. In giving these instructions, the trial courtsaid that “all the evidence tends to show this is true.” Shortly
thereafter, the trial court instructed the jury as follows:
Now, the law, as indeed it should,
requires the presiding judge to be impartial.
So you're not to draw any inference from any
ruling that I've made, or any inflection in
my voice or expression on my face, or
anything else I may have said or done during
this trial. As I say, you're not to let that
indicate to you that I have an opinion or
have intimated an opinion as to whether any
part of the evidence should be believed or
disbelieved, as to whether any aggravating or
mitigating circumstance has been proved or
disproved, or as to what your recommendation
ought to be. It is solely up to you to find
the true facts of a case and to make a
recommendation reflecting the truth as you
find it to be.
See N.C.P.I.--Crim. 150.10 (1993). Defendant argues this
instruction undermined and rendered meaningless the peremptory
instructions.
It appears defendant's appellate counsel has twisted
the trial proceedings to create the appearance of impropriety.
This Court has held that even when a peremptory instruction is
given, jurors can reject the evidence if they lack faith in its
credibility. State v. Carter, 342 N.C. 312, 322, 464 S.E.2d 272,
279 (1995), cert. denied, 517 U.S. 1225, 134 L. Ed. 2d 957
(1996). The instruction in the present case permitted the jury
to determine whether it believed the evidence presented even when
contradictory evidence was presented. The trial court's later
instruction was consistent with the peremptory instructions.
This assignment of error is without merit.
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