All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
2. Confessions and Incriminating Statements-_motion to suppress--custody--
Miranda warnings
The trial court did not err in a first-degree murder case by denying defendant's
motion to suppress an inculpatory statement made at the police station because defendant was not
in custody and Miranda warnings were not required where: (1) defendant was not under arrest
and defendant's movement was not restrained to the degree associated with a formal arrest at the
time he made the contested statement; (2) after reviewing the totality of circumstances
surrounding defendant's interview, the four factors defendant identifies including three pat-
downs, a closed interview room door, a detective's statement that defendant's girlfriend had
“given him up,” and the fact that defendant would not have been able to leave either police car on
his own because the rear doors of police vehicles lock automatically, did not render him in
custody; (3) non-communicated subjective suspicions and non-communicated subjective intent
of individual officers have no bearing on Miranda analysis; and (4) defendant's case is not
analogous to State v. Buchanan, 355 N.C. 264, when there was no abruptly elevated security in
defendant's case nor did the defendant make the same type of incriminating initial confession.
3. Jury_selection--excusal for cause--inability to return death sentence
The trial court did not abuse it discretion in a first-degree murder case by excusing
a prospective juror on the ground that she would be unable to return a sentence of death, because:
(1) the prospective juror's answers in this case were inconsistent; and (2) the trial court was well
equipped to discern whether the prospective juror's beliefs would substantially impair the
performance of her duties to fairly consider aggravating and mitigating circumstances, to weigh
those circumstances consistent with the trial court's instructions, and to exercise guided
discretion in returning an appropriate sentence.
4. Jury-_selection_-questioning replacement jurors before approval of panel of
twelve
Although the trial court violated North Carolina's jury selection statute under
N.C.G.S. § 15A-1214(f) by requiring defendant to question replacement jurors in a first-degree
murder case before the State approved a full panel of twelve individuals, this error was not
prejudicial to defendant and was not structural constitutional error because: (1) defendantsclaiming error in jury selection procedures must show prejudice in addition to a statutory
violation before they can receive a new trial; (2) defendant has not complained that the aberrant
procedure resulted in a biased jury, an inability to question the prospective jurors, an interference
with his right to challenge, or any other defect without which a different result might have been
reached; (3) our Supreme Court has previously held, under similar circumstances of juror
shortage, that a defendant is not prejudiced by questioning fewer than a full panel of replacement
jurors when that defendant has not exhausted his peremptory challenges, and defendant in this
case possessed adequate remaining peremptory challenges during both court sessions for which
he assigns error; and (4) defendant has failed to show that he was denied a trial by a fair and
impartial jury or to show that any other constitutional error resulted from the jury selection
procedure employed at his trial, and defendant did not raise this constitutional issue at trial.
5. Homicide--felony murder--attempted rape--motion to dismiss--sufficiency of
evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
felony murder based on attempted rape, because: (1) defendant removed his victim from a public
area to a secluded location, defendant removed the victim's shorts and underwear, defendant
made statements to police concerning rape, and defendant did not run away when the victim
resisted; and (2) the evidence presented by the State was sufficient evidence from which a jury
could infer defendant's intent to engage in vaginal intercourse with the victim against her will.
6. Confessions and Incriminating Statements; Evidence--threat to female
detention officer--relevancy
The trial court did not err in a first-degree murder case by overruling defendant's
objection to evidence regarding a threat he made to a female detention officer while defendant
was in a holding cell, because: (1) defendant failed to raise a constitutional objection to this
statement at trial, and constitutional issues not raised and passed upon at trial will not be
considered for the first time on appeal; (2) defendant failed to raise a N.C.G.S. § 8C-1, Rule 404
objection to the evidence; and (3) the evidence was relevant since it tended to prove that
defendant acknowledged guilt in the death of the victim in this case, and its probative value was
not substantially outweighed by the danger of unfair prejudice.
7. Sentencing_-capital_mitigating circumstances--remorse
Although the trial court erred during a first-degree murder capital sentencing
proceeding by excluding evidence of defendant's remorse, the error was harmless beyond a
reasonable doubt because: (1) defendant failed to raise this constitutional issue at trial; and (2)
other evidence of defendant's remorse that was not specifically objected to by the State was
before the jury.
8. Sentencing--capital--closing arguments--personal opinions--murder
especially heinous, atrocious, or cruel
The trial court did not err in a first-degree murder capital sentencing proceeding
by failing to intervene ex mero motu during closing arguments when prosecutors made
comments concerning whether this was an ordinary homicide or exceptionally disturbing and that
“it doesn't get any worse than what you've seen in this case” even though defendant contends
those comments represented the improper personal opinions and extra-record knowledge of the
prosecutors, because: (1) the statements of prosecutors represented permissible argument
regarding a matter in issue, which was the existence or nonexistence of the N.C.G.S. § 15A-
2000(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel;
(2) prosecutors properly drew reasonable inferences about the degree of brutality accompanying
the victim's murder, explained those inferences to the jury, and argued that the jury should
conclude that the killing committed by defendant was especially heinous, atrocious, or cruel; (3)
prosecutors did not urge their personal beliefs to the jury, but instead reminded jurors that theymust make an independent decision; and (4) prosecutors did not venture outside the record to
inject facts of their own knowledge, but instead properly limited their argument to conclusions
derived from facts in evidence.
9. Sentencing--capital--death penalty proportionate
The trial court did not err in a first-degree murder case by sentencing defendant to
the death penalty, because: (1) defendant was convicted based upon the felony murder rule with
the underlying felony being attempted rape, and our Supreme Court has held that murders
committed during the perpetration of a sexual assault may be more deserving of the death
penalty; (2) the jury found the N.C.G.S. § 15A-2000(e)(9) aggravating circumstance that the
murder was especially heinous, atrocious, or cruel; and (3) evidence presented by the State
suggested that the victim was conscious during much of the attack, that the attack took place over
a period of time, and that the nature and extent of the blows inflicted upon the victim were
mutilating.
Justice EDMUNDS concurring.
Justice ORR dissenting.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
a judgment imposing a sentence of death entered by Judge Howard
E. Manning, Jr. on 19 April 2001 in Superior Court, Wake County,
upon a jury verdict finding defendant guilty of first-degree
murder. Heard in the Supreme Court 13 October 2003.
Roy Cooper, Attorney General, by William P. Hart,
Special Deputy Attorney General, for the State.
Rudolf Maher Widenhouse & Fialko, by M. Gordon
Widenhouse, Jr., for defendant-appellant.
BRADY, Justice.
Juliann Bolt was murdered in the ladies' room of her
apartment complex clubhouse on 21 June 2000. On 10 July 2000,
defendant Fernando Louis Garcia, III
(See footnote 1)
was indicted for the first-
degree murder of Bolt. Defendant was tried capitally and was
found guilty of first-degree murder under the felony murder rule,with attempted rape as the underlying felony. Following a
capital sentencing proceeding, the jury recommended that
defendant be sentenced to death, and the trial court entered
judgment in accordance with that recommendation. Defendant
appealed his conviction and sentence pursuant to N.C.G.S. § 7A-
27(a), and this Court heard oral argument in defendant's case on
13 October 2003. After consideration of the assignments of error
raised by defendant on appeal and a thorough review of the
transcript, the record on appeal, the briefs, and oral arguments,
we find no error meriting reversal of defendant's capital
conviction or death sentence.
At trial, the State's evidence tended to show that both
defendant and Bolt resided at Cameron Lakes Apartments in
Raleigh, North Carolina. Shortly after 8:00 p.m. on 21 June
2000, Bolt went to the apartment clubhouse intending to exercise
in the workout area. The workout room had glass walls, doors,
and windows and adjoined a hallway that led to the men's and
ladies' restrooms. Defendant, who did not know Bolt, entered the
workout area. He escorted Bolt from the room, across the
hallway, and into the ladies' restroom at gunpoint. Once inside,
defendant forced Bolt to remove her gym shorts and underwear.
Defendant struck Bolt with his revolver. He made her lie face
down on the restroom floor and pinned her in that position by
placing his knee on her back. At some point, Bolt tried to kick
at defendant's groin. Defendant continued beating Bolt with the
revolver, cracking open her skull and dislodging the right
frontal lobe of her brain. When defendant left the restroom,
Bolt was bloodied, lying on the restroom floor, and making
gurgling sounds. Defendant then went to the men's restroom where he
discarded his underwear, which had become bloody. He discarded
his T-shirt in a dumpster outside the clubhouse and returned to
his apartment to wash his tennis shoes and sweat pants. At the
apartment, defendant also cleaned the revolver with alcohol and
hid it under his bed.
Defendant was convicted primarily on the basis of his
own confession and physical evidence, including blood evidence,
DNA evidence, shoe prints, fingerprints, his bloody clothing,
fresh scratches on his face, knee, back, and nose, and the murder
weapon (which had been recovered by police), as well as the
testimony of crime scene investigators, a blood spatter analyst,
and a pathologist. During the guilt-innocence phase of his
trial, defendant called one witness, Dr. Andrew Paul Mason, a
toxicologist who testified that forty hours after the murder
defendant's blood contained trace amounts of cocaine. Dr. Mason
also expressed his expert opinion that, at the time of the
murder, defendant had recently used and was under the influence
of cocaine. Dr. Mason further testified that cocaine use
facilitates violent behavior.
Additional relevant facts will be presented when
necessary to resolve specific assignments of error raised by
defendant.
PRE-TRIAL ISSUES
[1] Defendant contends that the trial court erred by
denying his motion to dismiss the first-degree murder charge
against him and, in the alternative, by denying his motion for a
bill of particulars. Defendant argues that he lacked notice as
to which underlying felony or felonies supported the felonymurder count because he was charged in a short-form indictment.
Defendant contends that the absence of such notice is a
jurisdictional defect requiring dismissal of his case. Defendant
further contends that if the indictment is constitutional, it is
vague and should have been supplemented by a bill of particulars
which sets forth the felonies upon which the State intended to
rely at trial. We disagree.
We note at the outset that information obtained through
a bill of particulars cannot remedy a constitutionally infirm
indictment. State v. Greer, 238 N.C. 325, 331, 77 S.E.2d 917,
922 (1953); State v. Gibbs, 234 N.C. 259, 261, 66 S.E.2d 883, 885
(1951). However, we do not find defendant's indictment to be
defective. Short-form indictments for homicide are authorized by
N.C.G.S. § 15-144, which states:
In indictments for murder and
manslaughter, it is not necessary to allege
matter not required to be proved on the
trial; but in the body of the indictment,
after naming the person accused, and the
county of his residence, the date of the
offense, the averment “with force and arms,”
and the county of the alleged commission of
the offense, as is now usual, it is
sufficient in describing murder to allege
that the accused person feloniously,
willfully, and of his malice aforethought,
did kill and murder (naming the person
killed), and concluding as is now required by
law . . . and any bill of indictment
containing the averments and allegations
herein named shall be good and sufficient in
law. . . .
N.C.G.S § 15-144 (2003). It is well settled that short-form
indictments authorized by section 15-144 meet state and federal
constitutional requirements. See State v. Hunt, 357 N.C. 257,
582 S.E.2d 593, cert. denied, ___ U.S. ___, 156 L. Ed. 2d 702
(2003); see also State v. Mitchell, 353 N.C. 309, 328-29, 543S.E.2d 830, 842, cert. denied, 534 U.S. 1000, 151 L. Ed. 2d 389
(2001); State v. Davis, 353 N.C. 1, 44-45, 539 S.E.2d 243, 271
(2000), cert. denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001);
State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38
(2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001);
State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43,
cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). More
specifically, this Court has consistently held that murder
indictments that comply with N.C.G.S. § 15-144 are sufficient to
charge first-degree murder on the basis of any theory set forth
in N.C.G.S. § 14-17. Braxton, 352 N.C. at 174, 531 S.E.2d at
437; State v. May, 292 N.C. 644, 661, 235 S.E.2d 178, 189, cert.
denied, 434 U.S. 928, 54 L. Ed. 2d 288 (1977). N.C.G.S. § 14-17
states that “[a] murder . . . which shall be committed in the
perpetration or attempted perpetration of any arson, rape or a
sex offense, robbery, kidnapping, burglary, or other felony
committed or attempted with the use of a deadly weapon shall be
deemed to be murder in the first degree.” N.C.G.S. § 14-17
(2003) (emphasis added). Therefore, a short-form indictment is
sufficient to charge first-degree murder on the basis of felony
murder committed during an attempted rape. Because defendant was
convicted of felony murder predicated upon attempted rape, and
because defendant was charged in a short-form indictment in
compliance with N.C.G.S. § 15-144, we find the indictment to be
constitutionally sufficient. For these reasons, the trial court
correctly denied defendant's motion to dismiss.
Concerning defendant's motion for a bill of
particulars, a defendant may request a bill of particulars “to
supplement the facts contained in the indictment.” State v.Randolph, 312 N.C. 198, 210, 321 S.E.2d 864, 872 (1984). The
purpose of a bill of particulars is to “inform [the] defendant of
specific occurrences intended to be investigated at trial” and
“to limit the course of the evidence to [that] particular scope
of inquiry.” State v. Young, 312 N.C. 669, 676, 325 S.E.2d 181,
186 (1985). To those ends, N.C.G.S. § 15A-925(b) requires that
“[a] motion for a bill of particulars must request and specify
items of factual information desired by the defendant which
pertain to the charge and which are not recited in the pleading.”
N.C.G.S. § 15A-925(b) (2003) (emphasis added). However, when
first-degree murder is charged, the State is not required to
elect between theories of prosecution prior to trial. State v.
Wingard, 317 N.C. 590, 594, 346 S.E.2d 638, 641 (1986).
Moreover, when the factual basis for prosecution is sufficiently
pled, “a defendant must be prepared to defend against any and all
legal theories which [the] facts may support.” State v. Holden,
321 N.C. 125, 135, 362 S.E.2d 513, 522 (1987), cert. denied, 486
U.S. 1061, 100 L. Ed. 2d 935 (1988).
The grand jury indictment in this case charged
defendant with “FIRST DEGREE MURDER . . . in violation of G.S. §
14-17.” Under section 14-17, the State may prove first-degree
murder by presenting evidence to support one of several theories,
including “deliberate[] and premeditated killing” and killing
“committed in the perpetration or attempted perpetration” of an
enumerated felony. N.C.G.S. § 14-17. By requesting that the
State identify which predicate felony it intended to prove at
trial, defendant essentially sought disclosure of the State's
legal theory. At the pre-trial hearing, defense counsel
explained, “[W]e asked what is the state's theory, whether it bepremeditation, deliberation, or felony murder, and if it is
felony murder, what are the felonies upon which they rely?”
(emphasis added). Such legal theories of the prosecution are not
“factual information” within the meaning of N.C.G.S. § 15A-925.
Cf. State v. Brown, 306 N.C. 151, 184, 293 S.E.2d 569, 590
(noting that “G.S. 15A-925 does not authorize a trial court to
order the State to disclose its aggravating circumstances prior
to trial” because “aggravating circumstances are not 'factual
information' within the meaning of G.S. 15A-925”), cert. denied,
459 U.S. 1080, 74 L. Ed. 2d 642 (1982); Young, 312 N.C. at 676,
325 S.E.2d at 186 (because aggravating circumstances are not
“'factual information' within the meaning of N.C.G.S. § 15A-
925(b)[,] . . . [t]he trial court did not err in failing to
require the State to list in a bill of particulars [the]
aggravating circumstances it intended to prove”). The State is
not required to choose its theory of prosecution prior to trial.
Accordingly, defendant was not entitled to learn the State's
theory of the case by a bill of particulars.
Moreover, N.C.G.S. § 15A-925(b) states that a motion
for a bill of particulars “must allege that the defendant cannot
adequately prepare or conduct his defense without such
[requested] information.” N.C.G.S. § 15A-925(b) (emphasis
added). However, it is apparent from the transcript that
defendant knew the State possessed at least some evidence to
support a conviction for felony murder based upon robbery or
attempted rape. In particular, defense counsel raised the
subject later in the pre-trial hearing, expressing his position
that there was insufficient evidence to prove that either rape or
sexual offense had taken place and requesting the trial court tolimit discussion of those felonies during opening arguments.
Defense counsel stated, “Well, I'm concerned actually about the
state taking the jury out on the theory that we're going to show
you, for example, a robbery occurred, a sexual offense occurred,
when there's no evidence to support those. And that case would
not go to the jury on felony murder based on those potential
felonies.” In light of counsel's discussion with the trial
court, there does not appear to be any factual information later
introduced at trial which was beyond defendant's knowledge and
necessary to enable defendant to “adequately prepare or conduct
his defense.” Id. To the contrary, the record shows that the
State voluntarily provided defendant with open file discovery.
During the pre-trial hearing, the prosecutor assured the court
“[a]nd again I'm telling the [c]ourt we're giving them open
file,” indicating that the State had fully complied with the
mandates of N.C.G.S. § 15A-903 (2003) and N.C.G.S. § 15A-907
(2003).
The granting or denial of a motion for a bill of
particulars is a matter soundly within the discretion of the
trial court and is not subject to review except in cases of
palpable and gross abuse of discretion. State v. Williams, 355
N.C. 501, 542, 565 S.E.2d 609, 633 (2002), cert. denied, 537 U.S.
1125, 154 L. Ed. 2d 808 (2003); Young, 312 N.C. at 676, 325
S.E.2d at 186. Because the State's legal theory is not factual
information within the meaning of N.C.G.S. § 15A-925(b), and
because defendant was not denied any information necessary for
adequate preparation or conduct of his defense, we do not find
palpable and gross abuse in this case. This assignment of error
is overruled. [2] Next, defendant assigns error to the trial court's
denial of his motion to suppress an inculpatory statement made at
the police station. Defendant argues that he made the statement
while he was in “custody” for purposes of Miranda v. Arizona, 384
U.S. 436, 16 L. Ed. 2d 694 (1966), that no Miranda warnings were
given, and that the statement should have been suppressed. In
support of his position, defendant emphasizes that the statement
was made in an interview room at police headquarters, that
defendant was transported to the station in the back seat of a
locked police car, and that defendant had been patted down three
times by police officers. Following careful review of the
record, we find that defendant was not in “custody” for purposes
of Miranda and that Miranda warnings were, therefore, not
required.
We note at the outset that, under Miranda, whether an
individual is in custody is a mixed question of law and fact.
Thompson v. Keohane, 516 U.S. 99, 112, 133 L. Ed. 2d 383, 394
(1995). Accordingly, we review the trial court's findings of
fact to determine whether they are supported by competent record
evidence, and we review the trial court's conclusions of law for
legal accuracy and to ensure that those conclusions “'reflect[] a
correct application of [law] to the facts found.'” State v.
Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000) (quoting
State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)),
cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). In doing
so, this Court must look first to the circumstances surrounding
the interrogation and second to the effect those circumstances
would have on a reasonable person. Thompson, 516 U.S. at 112,
133 L. Ed. 2d at 394. The trial court considered defendant's motion to
suppress at the pre-trial hearing conducted on or about 19
February 2001. On this matter, the State called, and defense
counsel cross-examined, several police officers with whom
defendant had contact on the night of the murder. Thereafter,
the court entered an order setting forth findings of fact and
conclusions of law as follows: Just before 10:00 p.m. on 21 June
2000, an off-duty police officer, D.J. Erhart, and his friend,
Matt Natusch, walked into the clubhouse of Cameron Lakes
Apartments located at 6200 Rieese Drive in Raleigh, North
Carolina. The clubhouse contained a workout room, lockers, and
men's and ladies' restrooms, and it connected to an outdoor
swimming pool. The men were at the clubhouse to leave a note for
the owner of one of the lockers. While Officer Erhart affixed
the note, Natusch saw a black female walk into the ladies'
restroom. Soon thereafter, both men heard the female scream.
They went into the ladies' restroom where they discovered Juliann
Bolt's body lying on the floor next to the door. Officer Erhart
immediately called the authorities.
Meanwhile, the unidentified female left the clubhouse.
Natusch followed her to a nearby apartment within the complex at
4001-2D Guy Circle. He observed her enter the apartment and kept
watch until she emerged approximately ten minutes later wearing
different clothing. The female then walked back to the clubhouse
to speak with police officers who had arrived to investigate.
Detective Brad Kennon, a City of Raleigh police
officer, responded to the scene. Detective Kennon interviewed
both Officer Erhart and Natusch at his supervisor's request.
From Natusch, Detective Kennon learned the address of the blackfemale (now known to be Keisha Maynor). Maynor had returned to
the scene and was waiting to be voluntarily transported to the
Raleigh City Police Department Headquarters (hereinafter the
police station) for questioning.
Thereafter, Detective Kennon walked to Maynor's
apartment, located at 4001-2D Guy Circle, where he knocked on the
door. Defendant answered wearing only shorts. He appeared to be
wet. Detective Kennon asked whether defendant's girlfriend had
gone to the pool to report a crime to the police and defendant
affirmed that she had. Detective Kennon then informed defendant
that his girlfriend Maynor was going to be transported to the
police station to give a statement. Defendant asked whether
Detective Kennon would like him to go to the police station as
well. Detective Kennon replied that sometimes people are more
comfortable if they have a family member or friend with them
while they are waiting at the police station and that it would be
fine if defendant wanted to go. Defendant stated that he wanted
to go to the station but would like to get dressed. Detective
Kennon engaged in casual conversation with defendant and, while
waiting for him to dress, Detective Kennon observed defendant
wash his hands and forearms.
After dressing, defendant followed Detective Kennon out
of the apartment and locked the door. They walked back to the
clubhouse together. On the way, another officer approached
Detective Kennon and informed him that there was an outstanding
arrest warrant for defendant. Detective Kennon told the officer
not to worry about it and that defendant wanted to go sit with
his girlfriend at the police station. The officer then walked
away, and Detective Kennon and defendant continued theirconversation. Defendant mentioned that it was a hot night and
that he had been swimming in the clubhouse pool earlier in the
evening.
At the parking lot, Detective Kennon informed defendant
that he already had a full car and that defendant would have to
wait for another officer to transport him to the police station.
Defendant stated that he understood. Detective Kennon informed
Sergeant Kerrigan that defendant wanted to go to the station but
needed transportation. Detective Kennon also informed Sergeant
Kerrigan that he considered defendant to be suspicious and that
an arrest warrant should be served on defendant if he decided to
leave. Detective Kennon then drove Officer Erhart and Natusch to
the police station.
While waiting for transportation to the police station,
defendant was alone. He leaned up against one of the empty
patrol cars approximately twenty to thirty feet from the crime
scene. Detective Kennon observed defendant standing alone by the
patrol car as he drove away from the complex. At no time did
Detective Kennon or Sergeant Kerrigan convey their personal
suspicions to defendant by word or action.
While defendant waited for transportation, Maynor was
already en route to the station. During the trip, Maynor told
the transporting officer, Detective Mary Blalock, that her
boyfriend (defendant) was involved in the crime. Detective
Blalock stopped the car and contacted Lieutenant Ken Mathias at
the crime scene to relay that information. Raleigh Police
Detective Ken Andrews and Sergeant Paula O'Neil overheard
portions of Lieutenant Mathias' conversation with Detective
Blalock. Detective Andrews left the crime scene and drove to thepolice station in order to interview defendant when he arrived.
Sergeant O'Neil informed another officer on the scene, Officer
Robert Council, that she had information indicating that
defendant might be involved in the homicide and that the victim
appeared to have sustained a gunshot wound. At that time,
defendant remained alone leaning on a police car. No other
officers were nearby.
Officer Council shared the information he received from
Sergeant O'Neil with his supervisor, Sergeant Mead. Sergeant
Mead told Officer Council to ask defendant for permission to pat
him down. Officer Council approached defendant and asked if he
would mind having a seat in the patrol car while transportation
was being arranged. Defendant agreed that would be “fine.”
Officer Council informed defendant that he was not under arrest
but that it was routine department policy and procedure for
officer safety to perform a pat-down for weapons before allowing
anyone into a police car. Defendant said that a pat-down would
be “fine.” Another uniformed officer accompanying Officer
Council performed the pat-down, and defendant waited in the back
of the patrol car. Officer Council reported back to Sergeant
Mead and was told that Corporal McNeil would transport defendant
to the station.
Officer Council returned to defendant and told him that
a different officer would take him to the station. Officer
Council repeated that defendant was not under arrest but asked
permission to pat him down again, explaining that defendant was
going to be moved to another police car. Defendant consented.
At Corporal McNeil's vehicle, defendant was again informed that
he was not under arrest but that the transporting officer wouldlike to conduct his own pat-down. Defendant stated that he
understood and consented to the search. Corporal McNeil,
accompanied by Officer Detric Bond, then drove defendant to the
police station. On the way to the station, conversation was
polite, lighthearted, and casual. The three talked about cars
and an upcoming concert. They arrived at the station around
11:30 p.m.
At the police station, Officer Bond walked in with
defendant, and they rode the elevator to the fourth floor, where
the investigative division was located. The area was crowded and
Officer Bond had difficulty finding defendant a room in which to
wait. As Officer Bond was looking for a room, defendant stated
that he was thirsty. Officer Bond told defendant that he could
go use the water fountain. Defendant walked to the fountain
alone and returned to where Officer Bond was standing. Officer
Bond then directed defendant to an office that had been converted
into a polygraph room. The room was approximately eight feet by
ten feet, was carpeted, and contained a desk and chairs. Officer
Bond told defendant that someone would be with him shortly and
that he would be out in the common area completing paperwork if
defendant needed anything. Officer Bond closed the door, but the
door remained unlocked at all times. Officer Bond went across
the hallway to a desk where he sat to work. The officer's back
was to defendant's room, and defendant made no requests of him.
Detective Andrews entered the interview room at
approximately 11:57 p.m. to speak with defendant. He was dressed
in plain clothes, was not wearing a jacket, and had removed his
firearm. Detective Andrews entered the room alone, shook hands
with defendant, introduced himself, and thanked defendant forcoming in to talk as others at the apartment complex had done.
Detective Andrews asked defendant if he needed anything, but
defendant responded that he had already had some water.
Detective Andrews asked defendant about his activities
that evening. Defendant told Detective Andrews that he had been
in the pool earlier that day, from around 2:30 to 4:30 in the
afternoon. Defendant further stated that around 6:00 p.m., he
went to visit a friend named Tony and that he did not return home
until 9:30 p.m. Defendant could not provide any specific details
about Tony or how to contact him.
Next, Detective Andrews asked defendant about a cut on
his finger. Defendant stated that he had injured his finger on
Tony's car door. Detective Andrews told defendant that the
information he had provided was different from the information
other witnesses from the apartment complex were providing.
Defendant stated that he was telling the truth, but Detective
Andrews responded that Maynor had “given him up.” Defendant
requested a drink and a cigarette lighter and said that he had a
story for Detective Andrews.
Detective Andrews left defendant in the room alone and
went to retrieve a lighter and a beverage for defendant. When
Detective Andrews returned, defendant lit a cigarette. Then,
defendant gave a detailed confession stating that he had forced
“the girl” into the ladies' restroom, made her lie face down on
the floor, and beat her with the revolver. Defendant stated that
he had intended to rob “the girl,” that he did not have sex with
her, and that he could not maintain an erection because he had
been drinking all day and was high on cocaine. Defendant
explained that he had removed the victim's shorts and underwearand pushed up her shirt because he wanted to make the attack look
like a rape. Among other specifics, defendant told Detective
Andrews where to find his bloody clothes, his tennis shoes, and
the revolver. The interview lasted no longer than thirty
minutes. At the conclusion of defendant's confession, Detective
Andrews left him alone in the room.
The trial court found that defendant was coherent and
did not appear to be under the influence of any impairing
substance during the interview, that neither Detective Andrews
nor defendant raised his voice, that defendant was not
threatened, and that no promises were made to defendant.
According to the trial court, defendant was never misled,
deceived, or confronted with false accusations of evidence.
Actually, every request by defendant was granted, including
transportation to the police station, water, a soft drink, and a
cigarette lighter. At no time was defendant handcuffed.
Finally, at the time of his interview, defendant was familiar
with the criminal justice system, having two prior convictions
and other charges pending against him in a third matter.
Ultimately, the trial court concluded, as a matter of
law, that defendant was not formally arrested or otherwise
subjected to a restraint on his freedom of movement to the degree
associated with a formal arrest. The court further concluded
that a reasonable person in defendant's position would not have
understood himself to be under arrest or under formal restraint.
Therefore, the court determined that defendant was not in custody
for Miranda purposes and that Detective Andrews was not required
to recite defendant's constitutional rights as outlined by
Miranda. Miranda protects individuals from the “inherently
compelling pressures” of custodial interrogation. Miranda, 384
U.S. at 467, 16 L. Ed. 2d at 719. A person is “in custody” for
purposes of Miranda when it is apparent from the “totality of the
circumstances” that there is a “'formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest.'” State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823,
828 (2001) (Buchanan I); accord California v. Beheler, 463 U.S.
1121, 1125, 77 L. Ed. 2d 1275, 1279 (1983) (per curiam). Because
Miranda warnings are implemented to prevent coerced self-
incrimination, Dickerson v. United States, 530 U.S. 428, 435, 147
L. Ed. 2d 405, 414 (2000) (“[T]he coercion inherent in custodial
interrogation blurs the line between voluntary and involuntary
statements, and thus heightens the risk that an individual will
not be 'accorded his privilege under the Fifth Amendment . . .
not to be compelled to incriminate himself.'”) (quoting Miranda,
384 U.S. at 439, 16 L. Ed. 2d at 704), custody analysis examines
the interrogation subject's point of view, Stansbury v.
California, 511 U.S. 318, 323-24, 128 L. Ed. 2d 293, 299
(1994)(per curiam)(“[U]nder Miranda '[a] policeman's
unarticulated plan has no bearing on the question whether a
suspect was “in custody” at a particular time'; rather, 'the only
relevant inquiry is how a reasonable man in the suspect's
position would have understood his situation.'”) (quoting
Berkemer v. McCarty, 468 U.S. 420, 442, 82 L. Ed. 2d 317, 336
(1984)) (alterations in original). “[T]he initial determination
of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.”Stansbury, 511 U.S. at 323, 128 L. Ed. 2d at 298. We must
therefore determine whether, based upon the trial court's
findings of fact, a reasonable person in defendant's position
would have believed that he was under arrest or was restrained in
his movement to that significant degree. Buchanan I, 353 N.C. at
339-40, 543 S.E.2d at 828.
Defendant is an adult male who has prior experience
with the criminal justice system in this state. He was
transported to the police station at his own request. While
waiting for transportation, defendant was generally alone.
Although defendant was frisked before entering any police
vehicle, officers explained the reason for the pat-downs and
carried them out with defendant's consent. During this process,
Officer Council twice informed defendant that he was not under
arrest.
The trial court noted that defendant's conversation was
polite, lighthearted, and casual while en route to the police
station. Upon arrival, he was free to move about unescorted to
get a drink of water from the fountain. Thereafter, defendant
was asked to wait in an unlocked interview room. A plain-
clothed, unarmed officer conducted defendant's interview. At no
time did either party raise his voice. Defendant was not
threatened in any way, and no promises were made to him. He was
not handcuffed at any time preceding, during, or immediately
following the interview. Each of defendant's requests was
granted, and in fact, Detective Andrews took a break during the
interview to fulfill them. Given these circumstances, we agree
with the trial court that defendant was not under arrest and thatdefendant's movement was not restrained to the degree associated
with a formal arrest at the time he made the contested statement.
Defendant argues that a reasonable person subjected to
three pat-downs, a closed interview room door, and Detective
Andrews' statement that Maynor had “given him up” would believe
himself to be under arrest or restrained in movement to that
degree. Defendant also points out that he would not have been
able to leave either police car on his own because the rear doors
of police vehicles lock automatically. However, no single factor
controls the determination of whether an individual is “in
custody” for purposes of Miranda. State v. Barden, 356 N.C. 316,
338, 572 S.E.2d 108, 124 (2002), cert. denied, 538 U.S. 1040, 155
L. Ed. 2d 1074 (2003). We are persuaded that, after reviewing
the totality of circumstances surrounding defendant's interview,
the four factors defendant identifies did not render him in
custody as defined by Miranda.
Defendant also emphasizes that Detective Kennon
suspected him of participation in the homicide. It is well
settled that non-communicated subjective suspicions and the non-
communicated subjective intent of individual officers have no
bearing on Miranda analysis. Stansbury, 511 U.S. at 324, 128 L.
Ed. 2d at 299 (“[A] police officer's subjective view that the
individual under questioning is a suspect, if undisclosed, does
not bear upon the question whether the individual is in custody
for purposes of Miranda.”). Here, the trial court found, based
upon ample evidence, that Detective Kennon's personal suspicions
were not communicated to defendant. Additionally, the transcript
indicates that all discussions about defendant's possible
involvement were limited to law enforcement officers and tookplace out of defendant's hearing. In fact, when informed of an
outstanding warrant on defendant in defendant's presence,
Detective Kennon told the informing officer not to worry about
it. Because Detective Kennon's suspicions were not communicated
to defendant, they are irrelevant to our inquiry.
Finally, defendant argues that his case is analogous
to State v. Buchanan, 355 N.C. 264, 559 S.E.2d 785 (2002)
(Buchanan II) (per curiam), in which this Court upheld a trial
court ruling suppressing incriminating statements by a
defendant.
(See footnote 2)
Defendant's reliance on Buchanan II is misplaced.
In Buchanan, the suspect admitted during a station-
house interview to participation in a homicide. Buchanan I, 353
N.C. at 334, 543 S.E.2d at 825. Specifically, the suspect stated
that he engaged in a drunken confrontation with the two victims
before he “just went berserk,” took the shotgun off a rack on the
wall, and started shooting. Id. Shortly thereafter, the suspect
asked to use the restroom. Id. His request was granted, and the
suspect went to the restroom accompanied by the two police
interrogators, one of whom was in uniform and carried a firearm. Id. at 334-35, 543 S.E.2d at 824-25. (Prior to the
interrogation, the investigating officer had allowed the suspect
to use the restroom and to get a drink of water by himself.) Id.
at 334, 543 S.E.2d at 824. Upon returning to the interrogation
room, the suspect signed a written copy of his first statement
and made a second statement further incriminating himself. Id.
at 335, 543 S.E.2d at 825. After this second statement was
reduced to writing and signed by the suspect, he was arrested and
given Miranda warnings. Id. Thereafter, the interviewing
officers filled out a Miranda waiver form, which the suspect also
signed. Id. The trial court suppressed “any statements [the
suspect] made between the time he returned from the bathroom
until Miranda warnings were properly administered,” Buchanan II,
355 N.C. at 265, 559 S.E.2d at 785, and this Court affirmed. Id.
at 265, 559 S.E.2d at 785-86.
In the present case, defendant gave a single
incriminating statement to a plain-clothed, unarmed detective.
Although a recess was taken during both the interrogation in
Buchanan and defendant's questioning in the present case, the
break in Buchanan was accompanied by circumstances that would
cause a reasonable person to believe he was under arrest or that
his movement had been restrained to that degree. In Buchanan,
the presence of two interrogating officers, one of whom was
uniformed and armed, escorting the suspect to the restroom
represented a heightened level of security and a marked shift in
the tone of the suspect's station-house interview. The changed
nature of the suspect's relationship with the interviewing
officers would have been especially apparent because the facts of
Buchanan indicate that before giving his first inculpatorystatement, the suspect was allowed to visit the restroom and get
a drink of water by himself. Also, the suspect in Buchanan had a
second compelling reason to believe he was under arrest, having
just confessed to two police officers that he had become
“berserk” and shot two people to death in their bedroom. Indeed,
the facts of Buchanan show that the suspect's preliminary
statement prompted the officers to accompany him to the men's
restroom.
We find no such abruptly elevated security in the
defendant's case nor did the defendant make the type of
incriminating initial confession as did the suspect in Buchanan.
Instead, we reiterate that custody analysis, for purposes of
Miranda, is dependent upon the unique facts surrounding each
incriminating statement. Barden, 356 N.C. at 337, 572 S.E.2d at
123 (“The proper inquiry for determining whether a person is 'in
custody' for purposes of Miranda is 'based on the totality of the
circumstances, whether there was a “formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest.”'”) (quoting Buchanan I, 353 N.C. at 339, 543 S.E.2d at
828) (emphasis added). This Court reviews those facts and
circumstances together as a whole because the effect on a
reasonable person is best discerned from context. No one factor
is determinative.
Based upon the totality of the circumstances, we hold
that a reasonable person in defendant's position would not have
believed that he was under arrest or that his freedom of movement
was restrained to the degree of a formal arrest. We conclude
that the trial court's findings of fact are supported by
competent record evidence, and that the court properly appliedthe law to those facts. Defendant was not in custody when he
made the contested statements; therefore, the police were not
required to give Miranda warnings. This assignment of error is
overruled.
JURY SELECTION
[3] Next, defendant sets forth two assignments of error
arising from the jury selection process, which he contends
entitle him to a new trial. First, defendant argues that the
trial court erred by excusing prospective juror, Beth Bond, on
the ground that she would be unable to return a sentence of
death. Defendant argues that despite Bond's personal views
opposing the death penalty, her testimony indicated that she
would be able to follow the law and to vote to return a verdict
recommending the death sentence if appropriate. Therefore,
defendant contends that the trial court violated his
constitutional right to an impartial jury. We disagree.
During voir dire, Bond stated that she had “been
opposed to capital punishment all of [her] adult life, and in
terms of public policy.” She explained that she had held these
beliefs for thirty-one years. Upon questioning by the prosecutor
as to whether she could vote “under any circumstance” to impose a
death sentence, Bond replied in part, “I'm uncertain. That's as
honest an answer as I can give you. . . . I would probably work
hard to find some other way than that, but I can't say to you,
no, I would not apply the law. I can't.” When asked to repeat
her statement, Bond said, “I can't say to you I absolutely would
not; if I were seated, I would have to.” Bond explained the
“public policy” reasons for which she opposed the death penalty
and agreed that she would be predisposed to vote for life withoutparole “[i]f [she could] do that in [her] mind and apply the
law.”
Thereafter, the court questioned Bond. When asked
directly whether she could give both sides the benefit of a
“level playing field,” Bond responded, “The State would not be in
a hole; it would be in [an] indentation, though, and that's the
honest truth.” The court then excused Bond for cause.
The United States Supreme Court first addressed the
constitutionality of excluding prospective jurors who express
uneasiness about participation in the imposition of a death
sentence in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d
776 (1968). In Witherspoon, the Supreme Court examined an
Illinois statute that allowed challenges for cause “of any juror
who shall, on being examined, state that he has conscientious
scruples against capital punishment, or that he is opposed to the
same” in murder trials. Id. at 512, 20 L. Ed. 2d at 779.
Concluding that “[a] man who opposes the death penalty, no less
than one who favors it, can make the discretionary judgment
entrusted to him by the State and can thus obey the oath he takes
as a juror,” the Court struck down the statute and granted the
defendant a new trial. Id. at 519, 20 L. Ed. 2d at 783.
In Adams v. Texas, the Supreme Court clarified
Witherspoon, as a “limitation on the State's power to exclude
[jurors],” 448 U.S. 38, 48, 65 L. Ed. 2d 581, 591 (1980), but
recognized “the State's legitimate interest in obtaining jurors
who could follow their instructions and obey their oaths.” Id. at
44, 65 L. Ed. 2d at 589. Thus, the Court stated, “This line of
cases establishes the general proposition that a juror may not be
challenged for cause based on his views about capital punishmentunless those views would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.” Id. 448 U.S. at 45, 65 L. Ed. 2d at
589. The United States Supreme Court confirmed Adams as the
proper standard to be applied when a juror's personal opposition
to the death penalty becomes apparent. Wainwright v. Witt, 469
U.S. 412, 424, 83 L. Ed. 2d 841, 851 (1985) (“We therefore take
this opportunity to clarify our decision in Witherspoon, and to
reaffirm the above-quoted standard from Adams as the proper
standard for determining when a prospective juror may be excluded
for cause because of his or her views on capital punishment.”).
Our General Assembly effectively codified Wainwright in
N.C.G.S. § 15A-1212(8), which states that any juror who, “[a]s a
matter of conscience, regardless of the facts and circumstances,
would be unable to render a verdict with respect to the charge in
accordance with the law of North Carolina” may be challenged for
cause. N.C.G.S. § 15A-1212(8) (2003). Additionally, in State v.
Cummings, this Court applied Wainwright, listing several “sworn
duties of a juror in a capital sentencing hearing” in North
Carolina. 326 N.C. 298, 306, 389 S.E.2d 66, 70 (1990). As
explained in Cummings, a capital juror's duties include
“consideration of aggravating and mitigating circumstances,
weighing such circumstances under the court's instructions, and
exercising the guided discretion necessary for a reliable
sentence.” Id. Under Wainwright, Cummings, and N.C.G.S. § 15A-
1212(8), if personal beliefs substantially impair a juror's
ability to carry out these duties, that juror may properly be
excused for cause. In Wainwright the United States Supreme Court
recognized that the law leaves
trial courts with the difficult task of
distinguishing between prospective jurors
whose opposition to capital punishment will
not allow them to apply the law or view the
facts impartially and jurors who, though
opposed to capital punishment, will
nevertheless conscientiously apply the law to
the facts adduced at trial.
469 U.S. at 421, 83 L. Ed. 2d at 850. In this task, the United
States Supreme Court provided guidance. The Court emphasized
that trial judges are uniquely positioned to observe the
demeanor, credibility, and state of mind of a prospective juror.
Id. at 428, 83 L. Ed. 2d at 854. As such, findings based upon
those observations are “peculiarly within a trial judge's
province” and are “entitled to deference even on direct review.”
Id. Further, the proper standard, as noted by the Court in
Wainwright,
does not require that a juror's bias be
proved with 'unmistakable clarity.' This is
because determinations of juror bias cannot
be reduced to question-and-answer sessions
which obtain results in the manner of a
catechism. . . . [M]any veniremen simply
cannot be asked enough questions to reach the
point where their bias has been made
'unmistakably clear'; these veniremen may not
know how they will react when faced with
imposing the death sentence, or may be unable
to articulate, or may wish to hide their true
feelings. Despite this lack of clarity in
the printed record, however, there will be
situations where the trial judge is left with
the definite impression that a prospective
juror would be unable to faithfully and
impartially apply the law. . . . [T]his is
why deference must be paid to the trial judge
who sees and hears the juror.
Id. at 424-26, 83 L. Ed. 2d at 852-53 (footnote omitted). For
these same reasons, this Court consistently applies abuse of
discretion as the standard of review when a defendant argues thatthe trial court erred by excusing a juror solely because of that
juror's personal views opposing the death penalty. See State v.
Berry, 356 N.C. 490, 500, 573 S.E.2d 132, 141 (2002) (“In light
of [the prospective juror's] final assertion that he could not
follow the law if the evidence were circumstantial, the trial
court did not abuse its discretion in excusing him for cause.”);
State v. Kemmerlin, 356 N.C. 446, 461-62, 573 S.E.2d 870, 883
(2002) (“[W]e ordinarily 'defer to the trial court's judgment as
to whether the prospective juror could impartially follow the
law.'”) (quoting State v. Morganherring, 350 N.C. 701, 726, 517
S.E.2d 622, 637 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed.
2d 322(2000)); State v. Wiley, 355 N.C. 592, 608-610, 565 S.E.2d
22, 35-36 (2002) (applying the abuse of discretion standard to
the excusal of a prospective juror for cause based upon that
juror's views about the death penalty), cert. denied, 537 U.S.
1117, 154 L. Ed. 2d 795 (2003).
Furthermore, we have declined to find abuse of
discretion in these cases when prospective jurors' responses are
inconsistent or when jurors' answers regarding their ability to
follow the law are equivocal. See Berry, 356 N.C. at 500, 573
S.E.2d at 141 (concluding the trial court did not abuse its
discretion by excusing a prospective juror for cause because his
responses were “not consistent during voir dire, in that he
sometimes stated that he could follow the law, while other times
he qualified his answers by adding that he would require more
than circumstantial evidence” to recommend a sentence of death);
State v. Jones, 355 N.C. 117, 122, 558 S.E.2d 97, 101 (2002)
(holding the same given the “equivocating nature of [a
prospective juror's] responses” during voir dire); State v.Greene, 351 N.C. 562, 567-68, 528 S.E.2d 575, 578-79 (2000)
(concluding the same when a prospective juror gave conflicting
answers regarding his ability to impartially follow the law),
cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000); State v.
Yelverton, 334 N.C. 532, 544, 434 S.E.2d 183, 190 (1993) (holding
the same when “equivocation in the prospective juror's answers
resulted from his expressed, conscientious desire to do his duty
as a juror and to follow the trial court's instructions in the
face of recognizing his personal inability to impose the death
penalty”).
Here, Bond's answers were inconsistent. Even though
Bond indicated a sincere desire to follow the law, the best Bond
was able to tell the court was “I can't say to you, no, I would
not apply the law.” Bond told the prosecutor about strong
beliefs against the death penalty which she has held for
thirty-one years, stating that because of those beliefs, she was
“uncertain” as to whether she could return a death sentence under
any circumstance. When questioned by the trial judge, Bond
communicated clearly that in her mind the prosecution would begin
at a disadvantage, which she characterized as “in [an]
indentation.”
The mixed nature of Bond's responses demonstrates the
dilemma articulated in Wainwright: voir dire does not always
elicit concrete answers. See Greene, 351 N.C. at 567, 528 S.E.2d
at 579 (“'The conflicting answers given by these prospective
jurors illustrate clearly the United States Supreme Court's
conclusion that a prospective juror's bias may, in some
instances, not be provable with unmistakable clarity.'”) (quoting
State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989),cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990)). Here,
Bond earnestly did not know how she would react when faced with
imposing a death sentence. Seeking clarity, the trial judge
questioned Bond himself. As a first-person observer of voir
dire, the trial court was well equipped to discern whether Bond's
beliefs would substantially impair the performance of her duties
to fairly consider aggravating and mitigating circumstances, to
weigh those circumstances consistent with the trial court's
instructions, and to exercise guided discretion in returning an
appropriate sentence. In light of Bond's apparent inner struggle
and the ambiguous and conflicting nature of her responses, we
cannot say that the trial judge abused his discretion by
discerning bias and excusing her for cause. Accordingly, this
assignment of error is overruled.
[4] Next, defendant argues that the trial court
violated North Carolina's jury selection statute, N.C.G.S. § 15A-
1214(f), and also committed structural constitutional error by
requiring defendant to question replacement jurors before the
State approved a full panel of twelve individuals. Defendant
points to aberrant selection procedure on two separate occasions
and argues that such deviations from the statutory method
automatically entitle him to a new trial. We disagree.
Jury selection began on 26 March 2001. By Friday, 30
March 2001, the State and defendant had agreed on seven jurors.
Even though five replacement jurors were needed to complete the
twelve-member jury panel, only four individuals remained in the
jury pool. Foreseeing this shortage, the trial judge had
announced at close of court the previous day that “in my
discretion, as I have already said twice, well, it's not fair to[the four individuals left in the jury pool] to dangle them on
the hook, because they may very well be on the jury, so we're
going to do that tomorrow.”
While questioning the remaining four prospective jurors
on 30 March 2001, the State successfully challenged one of them
for cause, leaving only three jurors to pass to defense counsel
for questioning. Defense counsel then conducted voir dire
without objection, exercising peremptory challenges with respect
to two of the candidates and passing one to sit on the jury
unchallenged. Upon completing voir dire of these three
prospective jurors, three of defendant's fourteen peremptory
challenges remained unused.
The second incident in question occurred on Monday, 2
April 2001 when four replacement jurors were needed to reach a
full panel of twelve. Late that afternoon the State indicated
satisfaction with three prospective jurors but then challenged or
excused four consecutive candidates. When it became apparent
that the State might not select four jurors in time for the
defendant to conduct voir dire that same day, the judge
determined that the State should pass the three jurors it had
selected. As a result, those jurors would not need to return to
court on the following morning. The judge prefaced his decision
with the recognition that
[t]hese three people have been here all day,
and in my discretion, unless there are any
objections, I would like to go ahead and send
home the balance of the panel. And out of a
matter of courtesy, let [defense counsel]
talk to the three people who you passed, so
they'll know one way or the other.
The judge then asked whether “anybody [had] a problem with that,”
to which defense counsel did not respond. Thereafter, the threeprospective jurors were passed to defendant for questioning.
Defendant exercised a peremptory challenge as to one candidate
and selected the remaining two to serve on the jury. At the
close of court on 2 April 2001, defendant had two peremptory
challenges remaining.
The General Assembly codified the method by which
juries are to be selected in North Carolina in N.C.G.S. § 15A-
1214. N.C.G.S. § 15A-1214 (2003). The statute was enacted to
ensure uniform jury selection processes throughout the state.
N.C.G.S. § 15A-1214 official commentary (2003). Through N.C.G.S.
§ 15A-1214, the legislature prescribed a selection method during
which replacement jurors are not passed to the defendant until
the State accepts a sufficient number of jurors to complete a
full panel of twelve. N.C.G.S. § 15A-1214(f). Section 15A-1214
provides in pertinent part:
(d) The prosecutor must conduct his
examination of the first 12 jurors seated and
make his challenges for cause and exercise
his peremptory challenges. If the judge
allows a challenge for cause, or if a
peremptory challenge is exercised, the clerk
must immediately call a replacement into the
box. When the prosecutor is satisfied with
the 12 in the box, they must then be tendered
to the defendant. Until the prosecutor
indicates his satisfaction, he may make a
challenge for cause or exercise a peremptory
challenge to strike any juror, whether an
original or replacement juror.
. . .
(f) Upon the calling of replacement jurors,
the prosecutor must examine the replacement
jurors and indicate satisfaction with a
completed panel of 12 before the replacement
jurors are tendered to a defendant . . .
This procedure is repeated until all parties
have accepted 12 jurors.
Id. § 15A-1214(d), (f) (emphasis added). Defendant now argues that the trial court deviated from
the statutorily mandated jury selection process on the two
occasions described above. However, defendant did not object to
these deviations at trial. Nonetheless, “'when a trial court
acts contrary to a statutory mandate . . . the right to appeal
the court's action is preserved.'” State v. Jaynes, 353 N.C.
534, 544-45, 549 S.E.2d 179, 189 (2001) (quoting State v. Ashe,
314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985)), cert. denied, 535
U.S. 934, 152 L. Ed. 2d 220 (2002); State v. Lawrence, 352 N.C.
1, 13, 530 S.E.2d 807, 815 (2000), cert. denied, 531 U.S. 1083,
148 L. Ed. 2d 684 (2001). Accordingly, defendant's statutory
assignment of error is preserved for review.
We agree that the procedures employed at trial violated
the express requirements of N.C.G.S. § 15A-1214(f). The
prosecutor passed less than a full panel of twelve replacement
jurors to defendant on two separate occasions. However, a new
trial does not automatically follow a finding of statutory error.
This Court has consistently required that defendants claiming
error in jury selection procedures show prejudice in addition to
a statutory violation before they can receive a new trial.
Jaynes, 353 N.C. at 545, 549 S.E.2d at 190 (Although the trial
court deviated from prescribed statutory jury selection
procedure, the defendant's assignment of error was overruled
“because defendant . . . failed to demonstrate prejudice.”);
State v. Hyde, 352 N.C. 37, 49, 530 S.E.2d 281, 290 (2000)
(emphasizing that defendant consented to deviations from
statutory jury selection procedures and that “defendant
conced[ed] that the trial court's jury selection method did not
disadvantage or prejudice him”), cert. denied, 531 U.S. 1114, 148L. Ed. 2d 775 (2001); Lawrence, 352 N.C. at 13, 530 S.E.2d at 815
(“Although the jury selection procedure violated the express
requirement of N.C.G.S. § 15A-1214(d) that the State pass a full
panel of twelve jurors, defendant has failed to show
prejudice.”). That is, defendant must prove that a reasonable
possibility exists that, had the error not been committed, a
different result would have been reached at trial. N.C.G.S. §
15A-1443(a) (2003).
The intended result of jury selection is to empanel an
impartial and unbiased jury. See State v. Williams, 286 N.C.
422, 427-28, 212 S.E.2d 113, 117 (1975) (providing that jurors
should be “free from a preconceived determination to vote
contrary to [either party's] contention concerning the
defendant's guilt”); State v. Carey, 285 N.C. 497, 506, 206
S.E.2d 213, 220 (1974) (“The basic concept in jury selection is
that each party to a trial has the right to present his cause to
an unbiased and impartial jury.”). To that end, the parties
conduct voir dire which “serves the dual purpose of ascertaining
whether grounds exist for challenge for cause and of enabling
counsel for the State and for the defendant to exercise
intelligently their peremptory challenges.” State v. Simpson,
341 N.C. 316, 336, 462 S.E.2d 191, 202 (1995), cert. denied, 516
U.S. 1161, 134 L. Ed. 2d 194 (1996). Fairness is promoted by
ensuring that the defendant has a full opportunity to face
jurors, question them, and challenge unsatisfactory candidates.
During jury selection, defendants, who question last, reap the
benefit of information developed during the State's voir dire.
See State v. Harris, 283 N.C. 46, 51, 194 S.E.2d 796, 799 (noting
that a defendant enjoyed “the last opportunity to exercise hisright of challenge [after] the State had all pertinent
information concerning the fitness and competency of the juror”),
cert. denied, 414 U.S. 850, 38 L. Ed. 2d 99 (1973).
Although defendant on appeal has stated that prejudice
occurred, he has made no attempt, either in written brief or at
oral argument before this Court, to show how the identified
statutory violation prejudiced his case. Defendant has not
complained that the aberrant procedure resulted in a biased jury,
an inability to question the prospective jurors, an interference
with his right to challenge, or any other defect without which a
different result might have been reached. Having explained what
happened, defendant has failed to show how the incidents in
question affected the conduct or outcome of his trial.
Moreover, this Court has previously held, under similar
circumstances of juror shortage, that a defendant is not
prejudiced by questioning fewer than a full panel of replacement
jurors when that defendant has not exhausted his peremptory
challenges. See e.g., Lawrence, 352 N.C. at 12-13, 530 S.E.2d at
814-15 (finding no prejudice when three more jurors were
required, but, because the prosecution had exhausted the jury
pool, only one replacement juror was passed to defendant and
defendant neither exercised his remaining peremptory challenge
nor challenged the passed replacement juror for cause). The
number of remaining peremptory challenges is most appropriately
measured from the time of the alleged error in jury selection.
Cf. State v. Wilson, 313 N.C. 516, 524-25, 330 S.E.2d 450, 457
(1985) (determining that defendant, who argued that the sheriff
had improperly summoned additional jurors, possessed two unused
peremptory challenges at the time the alleged error occurred). If peremptory challenges are unused, and the defendant makes no
challenge for cause, then he cannot be said to have been forced
to accept an undesirable juror. Lawrence, 352 N.C. at 13, 530
S.E.2d at 815.
Here, defendant possessed adequate remaining peremptory
challenges during both court sessions for which he assigns error.
Following the first deviation from the statutory selection
procedure, defendant accepted one juror, but possessed three
remaining peremptory challenges. Following the second deviation,
defendant accepted two jurors, but possessed two remaining
peremptory challenges. Altogether, defendant exercised only
twelve of his fourteen peremptory challenges during jury
selection proper. In fact, defendant carried two unused
peremptory challenges over into the alternate juror selection
process. Although defendant eventually exhausted his peremptory
challenges, defendant had multiple challenges available to him
during all sessions for which he assigns error. Accordingly,
defendant has failed to show prejudice, and his assignment of
statutory error is overruled.
Defendant also argues that the improper jury selection
procedure amounted to structural error. While defendant's brief
is somewhat unclear on this point, we presume that defendant is
asserting that the alleged structural error violated his
constitutional right to a fair and impartial jury.
Structural error is a rare form of constitutional error
resulting from “structural defects in the constitution of the
trial mechanism” which are so serious that “'a criminal trial
cannot reliably serve its function as a vehicle for determination
of guilt or innocence.'” Arizona v. Fulminante, 499 U.S. 279,309-310, 113 L. Ed. 2d 302, 331 (1991) (quoting Rose v. Clark,
478 U.S. 570, 577-78, 92 L. Ed. 2d 460, 470 (1986)). “Such
errors 'infect the entire trial process,' Brecht v. Abrahamson,
507 U.S. 619, 630, and 'necessarily render a trial fundamentally
unfair, Rose, 478 U.S. at 577.'” Neder v. United States, 527
U.S. 1, 8, 144 L. Ed. 2d 35, 46 (1999). For this reason, a
defendant's remedy for structural error is not dependant upon
harmless error analysis; rather, such errors are reversible per
se. Id. at 34, 144 L. Ed. 2d at 62. (“The very premise of
structural-error review is that even convictions reflecting the
'right' result are reversed for the sake of protecting a basic
right.”).
Although the United States Supreme Court first defined
structural error in 1991, that Court has identified only six
instances of structural error to date: (1) complete deprivation
of right to counsel, Johnson v. United States, 520 U.S. 461, 468-
69, 137 L. Ed. 2d 718, 728 (1997) (citing Gideon v. Wainwright,
372 U.S. 335, 9 L. Ed. 2d 799 (1963)); (2) a biased trial judge,
Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749 (1927); (3) the
unlawful exclusion of grand jurors of the defendant's race,
Vasquez v. Hillery, 474 U.S. 254, 88 L. Ed. 2d 598 (1986); (4)
denial of the right to self-representation, McKaskle v. Wiggins,
465 U.S. 168, 79 L. Ed. 2d 122 (1984); (5) denial of the right to
a public trial, Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31
(1984); and (6) constitutionally deficient jury instructions on
reasonable doubt, Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed.
2d 182 (1993). See Johnson, 520 U.S. at 468-69, 137 L. Ed. 2d at
728 (identifying the six cases in which the United States Supreme
Court has found structural error). The Court has also determinedthat other, arguably serious, constitutional errors were not
“harmless beyond a reasonable doubt” before granting a new trial.
See e.g., Neder, 527 U.S. at 15, 144 L. Ed. 2d at 51 (applying
harmless error analysis to a trial court's omission of an element
of the offense from the jury charge); Fulminante, 499 U.S. at
295, 113 L. Ed. 2d at 322 (applying harmless error analysis to
trial court's admission of a coerced confession); and Rose, 478
U.S. at 579, 92 L. Ed. 2d at 471 (An “erroneous malice [jury]
instruction does not compare with the kinds of errors that
automatically require reversal of an otherwise valid
conviction.”)(emphasis addded). In fact, the United States
Supreme Court emphasizes a strong presumption against structural
error, Rose, 478 U.S. at 579, 92 L. Ed. 2d at 471 (“If the
defendant had counsel and was tried by an impartial adjudicator,
there is a strong presumption that any other errors that may have
occurred are subject to harmless-error analysis”); See Neder, 527
U.S. at 8, 144 L. Ed. 2d at 46 (“[W]e have found an error to be
'structural,' and thus subject to automatic reversal, only in a
'very limited class of cases.') (quoting Johnson, 520 U.S. at
468, 137 L. Ed. 2d at 728), and this Court has recently declined
to extend structural error analysis beyond the six cases
enumerated by the United States Supreme Court, State v. Anderson,
355 N.C. 136, 142-43, 558 S.E.2d 87, 92-93 (2002) (holding that
improper prosecutorial questions and comments during voir dire
are not within the limited class of structural errors defined by
the United States Supreme Court).
In each of the six United States Supreme Court cases
rectifying structural error, the defendant made a preliminary
showing of a violated constitutional right and the identifiedconstitutional violation necessarily rendered the criminal trial
fundamentally unfair or unreliable as a vehicle for determining
guilt or innocence. See Gideon, 372 U.S. 335, 9 L. Ed. 2d 799;
Tumey, 273 U.S. 510, 71 L. Ed. 749; Vasquez, 474 U.S. 254, 88 L.
Ed. 2d 598; McKaskle, 465 U.S. 168, 79 L. Ed. 2d 122; Waller, 467
U.S. 39, 81 L. Ed. 2d 31; Sullivan, 508 U.S. 275, 124 L. Ed. 2d
182.
Here, defendant has failed to show that he was denied
trial by a fair and impartial jury or to show that any other
constitutional error resulted from the jury selection procedure
employed at his trial. Defendant has shown only a technical
violation of the state jury selection statute. Without more,
this statutory violation is insufficient to support a claim of
constitutional structural error.
Moreover, defendant did not raise this constitutional
issue at trial. Consequently, the trial court was denied the
opportunity to consider and, if necessary, to correct the error.
It is well settled that constitutional matters that are not
“raised and passed upon” at trial will not be reviewed for the
first time on appeal. State v. Watts, 357 N.C. 366, 372, 584
S.E.2d 740, 745 (2003), cert. denied, ___ U.S. ___, 158 L. Ed. 2d
370, (2004); N.C. R. App. P. 10(b)(1)(“In order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion . . .”).
Structural error, no less than other constitutional error, should
be preserved at trial. See State v. Roache, 358 N.C. 243, ___
S.E.2d ___ (2004) (determining that the defendant's assignment of
error which alleged that “improper jury selection procedure
violated his constitutional right to a fair and impartial jury”was not raised at trial and, consequently, had not been preserved
for appellate review); cf. Johnson, 520 U.S. at 466, 137 L. Ed.
2d at 726 (determining that structural error must be preserved
for review on direct appeal from judgment of conviction in the
federal courts). Accordingly, defendant has not only failed to
allege any constitutional error warranting a new trial, but has
also failed to preserve this assignment of error for appellate
review. This assignment of error is overruled.
[The State]: Officer McCormick, June 22nd of
last year, please describe any other action
[sic] you had with the Defendant in the
holding cell in the jail, please.
[Witness]: Well, I was standing up at the
podium, next to the courtroom door where the
guys were going in and out, but Garcia was
across over from me. He was really loud,
boisterous. I tried to get him to calm down,
because I know when people in there, how
somebody talking the way he was, they would
contact the D.A.'s office. I was doing it
for his behalf, and that's when he made the
statement to me.
[The State]: Okay. Let's start with what he
was saying. What was he saying out loud to
everybody?
[Defense Counsel]: Objection.
The Court: Overruled.
[The State]: You may answer. What was he
saying out loud?
[Witness]: After I told him, tried to get him
to be_- to be quiet, he made the statement,I've already killed one. I got one up under
my belt. And he was telling me about how he
got so many black belts, you know, he didn't
have anything to lose, I'll kill you . . . .
(Emphasis added).
Prior to this line of questioning and out of the
presence of the jury, defendant had objected to the portion of
Officer McCormick's testimony recounting defendant's threat on
her life. Defendant argued, through counsel, that the words “so
many black belts” and “I'll kill you” were not relevant. At that
time, however, defense counsel conceded that the accompanying
phrases “I've already killed one” and “I got one up under my
belt” were relevant as possible admissions of guilt.
Specifically, defense counsel stated:
Your Honor, what I anticipate we are about to
hear is a statement that Mr. Garcia is
alleged to have made in the holding cell in
his first appearance, something to the effect
I got one under my belt, I've already killed
someone, I've got nothing to lose. Which,
obviously, goes directly to this incident.
The portion of the statement that we object
to is, at least according to the report, he
went on to say that he would kill her,
referring to Ms. McCormick, and something to
the effect of I've got six years of black
belt and I'll kill you.
The transcript further reveals that defendant objected solely on
the grounds that the noted portions of Officer McCormick's
testimony were not relevant. However, defendant failed to enter
an objection based on constitutional grounds or based on North
Carolina Rule of Evidence 404(b).
We recognize at the outset that defendant failed to
raise a constitutional objection to this statement at trial and
that “[c]onstitutional issues not raised and passed upon at trial
will not be considered for the first time on appeal.” Watts, 357N.C. at 372, 584 S.E.2d at 745. Furthermore, defendant did not
raise a Rule 404 objection to the evidence. Likewise, in the
absence of a specific objection based on Rule 404, defendant has
failed to preserve this matter for review. N.C. R. App. P.
10(b)(1) (“In order to preserve a question for appellate review,
a party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were
not apparent from the context.”); see State v. Thibodeaux, 352
N.C. 570, 577, 532 S.E.2d 797, 803 (2000) (declining to review an
evidentiary assignment of error when defendant failed to enter a
specific objection premised on the evidentiary rule purported to
be violated), cert. denied, 531 U.S. 1155, 148 L. Ed. 2d 976
(2001). Therefore, we will address only the issue of relevance
which defendant properly raised at trial.
“'Relevant evidence' means 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
(2003). “All relevant evidence is admissible. . . .” Id., Rule
402 (2003). In the context of a murder, “evidence is relevant if
it 'tend[s] to shed light upon the circumstances surrounding the
killing,'” State v. Richmond, 347 N.C. 412, 428, 495 S.E.2d 677,
685 (quoting State v. Stager, 329 N.C. 278, 322, 406 S.E.2d, 876,
901 (1991)) (alteration in original), cert. denied, 525 U.S. 843,
142 L. Ed. 2d 88 (1998), or “if it has any logical tendency,
however slight, to prove a fact in issue,” Smith, 357 N.C. at
613, 588 S.E.2d at 460. Defendant concedes that the phrases “I've already
killed one” and “I got one up under my belt” could be interpreted
as statements of guilt. We hold that defendant's subsequent
statements “so many black belts” and “I'll kill you” are relevant
in the context of direct examination to show that what was “up
under [defendant's] belt” was a human life, that the defendant
had already “killed one” woman like Officer McCormick, and that
by “belt,” defendant meant black belt. Because these statements
tend to prove that defendant acknowledged guilt in the death of
Bolt, they are relevant.
Pursuant to Rules of Evidence 402 and 403, relevant
evidence is generally admissible unless “its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C.G.S. § 8C-1, Rule 403
(2003). The decision whether to exclude relevant evidence under
Rule 403 lies within the sound discretion of the trial court,
Braxton, 352 N.C. at 186, 531 S.E.2d at 444, and “'its ruling may
be reversed for abuse of discretion only upon a showing that the
ruling was so arbitrary that it could not have been the result of
a reasoned decision,'” Richmond, 347 N.C. at 429, 495 S.E.2d at
686 (quoting State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191,
194 (1996)). We find no such arbitrary action in this case.
Accordingly, defendant's threat was admissible at trial. This
assignment of error is overruled.
[Defense Counsel]: Did you and [defendant],
he discuss his feelings about what had
happened?
[Rodriguez]: Yes, we_-he did.
[Defense Counsel]: And what was that
discussion about?
[Rodriguez]: He --
[The State]: Object to this, Your Honor.
The Court: Overruled.
[Rodriguez]: We talked, and, you know--
[The State]: I object to this, Your Honor.
The Court: Overruled.
[Rodriguez]: Sometimes on the phone, he would
be sounding depressed. And, you know, my
thing to him was always, like I love you.
You know, I know this is, you know, bad, but,
you know, we love you, we're behind you. And
I would talk a lot about the [L]ord to him,
and tell him, you know, just ask the [L]ord,
why do you_-you don't_-once you make peace
with the [L]ord, then you're okay, you know.
And he expressed to me that he did. And he
even would say momma, read this first,
because that will help you, because that
helped me. And read this other verse, like
that. And it helped me to know that he was,
you know, sometimes he would be really
depressed and say, I wish I was back working,mom, I wish this never had happened, but it
was tough--
[Defense Counsel]: In those phone calls, when
you're talking about [defendant], about his
feelings, about what had happened, did he
ever express any remorse or sympathy about
the case?
[Rodriguez]: Yes.
[The State]: Objection.
The Court: Sustained.
[Defense Counsel]: Other than what you've
told us about making peace with the [L]ord,
what other feelings were expressed to you
about--
[Rodriguez]: About the case? We didn't go
into any specifics or anything.
[Defense Counsel]: I'm talking about
feelings, not the details of the case.
[Rodriguez]: About feelings, he always told
me he was sorry because he apologize--
[The State]: Object.
The Court: Sustained.
[Defense Counsel]: Nothing further.
Defendant argues that the trial court rulings
sustaining the State's objections were improper because they
prevented him from offering evidence of remorse to mitigate his
sentence. We agree that the trial court erred; however, we find
that defendant did not preserve this error at trial and, in the
alternative, that the error is harmless beyond a reasonable
doubt.
Traditional rules of evidence do not apply to capital
sentencing hearings. During those proceedings, all relevant
mitigating evidence must be admitted, even when state evidentiary
rules dictate its exclusion. See Green v. Georgia, 442 U.S. 95,97, 60 L. Ed. 2d 738, 741 (1979) (per curiam). Our courts employ
this relaxed standard because in capital cases “'the fundamental
respect for humanity underlying the Eighth Amendment . . .
requires consideration of the character and record of the
individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process
of inflicting the penalty of death.'” Eddings v. Oklahoma, 455
U.S. 104, 112, 71 L. Ed. 2d 1, 9 (1982) (quoting Woodson v. North
Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961 (1976))
(alteration in original); Lockett v. Ohio, 438 U.S. 586, 601, 57
L. Ed. 2d 973, 988 (1978) (same). Defendant's proffered
testimony, which tended to prove that he felt regret for the
crime he committed, should have been admitted as relevant
mitigating evidence in the sentencing phase of his capital trial.
Accordingly, we determine that the trial court committed
constitutional error by excluding these portions of Rodriguez's
testimony.
However, defendant did not raise this constitutional
issue at trial. As a result, the trial court was denied the
opportunity to consider and correct the error. Because it is
well settled that constitutional matters that are not raised and
passed upon at trial will not be reviewed for the first time on
appeal, defendant has failed to preserve this assignment of error
for our review. Watts, 357 N.C. at 372, 584 S.E.2d at 745.
Even so, we believe the trial court's rulings were
harmless beyond a reasonable doubt. See N.C.G.S. § 15A-1443(b)
(2003) (providing that constitutional error “is prejudicial
unless the appellate court finds that it was harmless beyond a
reasonable doubt”). The erroneous exclusion of evidence is notprejudicial when “the same or substantially the same testimony is
subsequently admitted into evidence.” State v. Burke, 342 N.C.
113, 120, 463 S.E.2d 212, 217 (1995) (quoting State v. Hageman,
307 N.C. 1, 24, 296 S.E.2d 433, 446 (1982)); accord State v.
Walden, 311 N.C. 667, 673-74, 319 S.E.2d 577, 581 (1984).
Moreover, the State has shown beyond a reasonable doubt that
under the specific facts of this case, the exclusion was harmless
and did not affect the outcome of the trial.
Notwithstanding the trial court's error, other evidence
of defendant's remorse, not specifically objected to by the
State, was before the jury. Rodriguez testified that defendant
felt “very sad” and felt “so bad about what happened.” She also
testified that defendant told her he had made “peace with the
[L]ord” and that he “wish[ed] this never had happened.” When
asked directly whether defendant talked about feelings of
remorse, Rodriguez answered “yes.” Finally, Rodriguez stated
that defendant “always told [her] he was sorry because he would
apologize.” Although the State's objections effectively
interrupted the flow of Ms. Rodriguez's testimony, and eventually
halted defense counsel's line of questioning, the State made no
motion to strike Ms. Rodriguez's prior admitted evidence of
defendant's remorse.
Also, Charles Rabb, a man involved in prison
ministries, testified that defendant told him that he had
murdered Bolt and that defendant was taking his sins to Christ.
From this testimony and the admitted testimony of defendant's
mother, the jury could have determined that defendant felt
meaningful personal regret for his wrongdoing. In summary, we determine that defendant failed to
preserve this assignment of constitutional error for review. In
the alternative, if defendant had preserved an assignment of
constitutional error, then any error resulting from the exclusion
of this evidence would be deemed harmless beyond a reasonable
doubt. This assignment of error is overruled.
[8] Next, defendant argues that the trial court erred
by failing to intervene ex mero motu during closing arguments at
the capital sentencing proceeding. Specifically, defendant
argues that throughout closing arguments, both prosecutors made
comments suggesting they knew about other murders that were less
egregious than the killing committed by defendant and that those
comments represented the improper personal opinions and extra-
record knowledge of the prosecutors.
In particular, defendant cites the following statement:
Members of the jury, I hope I am
successful in refocusing this jury and
reminding this jury what really is relevant
and what is important in this case. [The]
[q]uestion I have for you is what is the
price for causing such misery, for causing
such pain? As the final issue this jury will
have to determine, you have to ask yourself
is this an ordinary case of homicide, or is
there something exceptionally disturbing
about this first degree murder?
(Emphasis added). Also, defendant takes exception to the
prosecutors' description of Bolt's murder as “Society's worst
fear realized” and “Society's worst fear,” as well as their
statement that “[i]t doesn't get any worse than what you've seen
in this case.” Defendant contends that these arguments represent
personal opinions and extra-record knowledge that the State used
to advance the theme that Bolt's murder was an extraordinarymurder in order to persuade the jury to find one aggravating
circumstance_-an especially heinous, atrocious, or cruel
murder-_and to convince the jury that the aggravator warranted a
sentence of death. We recognize at the outset that “'statements
contained in closing arguments to the jury are not to be placed
in isolation or taken out of context on appeal,'” Jaynes, 353
N.C. at 559, 549 S.E.2d at 198 (quoting State v. Green, 336 N.C.
142, 188, 443 S.E.2d 14, 41, cert. denied, 513 U.S. 1046, 130 L.
Ed. 2d 547 (1994)), and that because defendant failed to object
to these allegedly improper statements during closing arguments,
he “must demonstrate that the prosecutor's closing arguments
amounted to gross impropriety,” State v. Rouse, 339 N.C. 59, 91,
451 S.E.2d 543, 560 (1994), cert. denied, 516 U.S. 832, 133 L.
Ed. 2d 60 (1995).
The same standard of gross impropriety governs closing
arguments during both phases of a capital trial. Defendant's
arguments are correct in that “[d]uring a closing argument to the
jury an attorney may not . . . inject his personal experiences
. . . or make arguments on the basis of matters outside the
record except for matters concerning which the court may take
judicial notice.” N.C.G.S. § 15A-1230(a) (2003). However, an
attorney may “on the basis of his analysis of the evidence, argue
any position or conclusion with respect to a matter in issue.”
Id. (emphasis added). Additionally, because “the objectives of
the arguments in the two phases are different . . . rhetoric that
may be prejudicially improper in the guilt phase is acceptable in
the sentencing phase.” State v. Kandies, 342 N.C. 419, 452, 467
S.E.2d 67, 85, cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167
(1996). During the capital sentencing phase of a trial, matters
in issue for the jury's consideration generally include those
circumstances surrounding a murder which tend to aggravate or
mitigate a defendant's criminal culpability. Accordingly, a
prosecutor may properly argue the existence of aggravating
circumstances, as well as the relative weight the jury should
lend to each circumstance. Cf. State v. Craig, 308 N.C. 446,
460, 302 S.E.2d 740, 749 (“[C]ounsel is entitled to argue what
weight [mitigating] circumstances should ultimately be
assigned.”), cert. denied, 464 U.S. 908, 78 L. Ed. 2d 247 (1983).
N.C.G.S. § 15A-2000(e) lists the eleven “[a]ggravating
circumstances which may be considered” by a capital jury,
including that “[t]he capital felony was especially heinous,
atrocious, or cruel.” N.C.G.S. § 15A-2000(e)(9)(2003). This
Court has previously determined that N.C.G.S. § 15A-2000(e)(9)
refers to the level of brutality incident to the murder, and that
to meet this aggravator, prosecutors must show that the brutality
involved exceeded that which is normally present in any killing.
State v. Goodman, 298 N.C. 1, 24-25, 257 S.E.2d 569, 585 (1979).
We determine that prosecutors properly drew reasonable
inferences about the degree of brutality accompanying Bolt's
murder, explained those inferences to the jury, and argued that
the jury should conclude that the killing committed by defendant
was “especially heinous, atrocious, or cruel.” See Jaynes, 353
N.C. at 560-61, 549 S.E.2d at 199 (“'A prosecutor in a capital
trial is entitled to argue all the facts submitted into evidence
as well as any reasonable inferences therefrom.'”) (quoting State
v. Gregory, 340 N.C. 365, 424, 459 S.E.2d 638, 672 (1995), cert.
denied, 517 U.S. 1108, 134 L. Ed. 2d 478 (1996)). Prosecutorsdid not urge their personal beliefs to the jury, but instead
reminded jurors that they must make an independent decision. The
questions “is this an ordinary case of homicide, or is there
something exceptionally disturbing about this first degree
murder?” and “what is the price for causing such misery, for
causing such pain?” focused the jurors' attention on the decision
they were required to make as to whether the section 15A-2000
e(9) “especially heinous, atrocious, or cruel” aggravator existed
and if so as to what weight its existence should be given.
Prosecutors did not venture outside the record to inject facts of
their own knowledge, but instead properly limited their argument
to conclusions derived from facts in evidence. Prosecutors
argued that the jury should place great weight on the e(9)
aggravator by recounting the circumstances surrounding Ms. Bolt's
death and concluding that those circumstances constituted
“[s]ociety's worst fear.”
We determine that, when viewed in context, the
statements of prosecutors during defendant's sentencing
proceeding represented permissible argument regarding a matter in
issue, the existence or nonexistence of statutory aggravator
N.C.G.S. § 15A-2000(e)(9). For these reasons, we decline to find
any gross impropriety which would necessitate sua sponte action
on the part of the trial court. This assignment of error is
overruled.
Although I agree with the premise of the dissent that
North Carolina's procedures and case law relating to a bill of
particulars contain more promise than substance, I do not believe
that the trial court abused its discretion here. Defendant's
motion for a bill of particulars made three requests. First, he
asked for the date and time of the victim's death. There is no
indication that defendant did not receive this information.
Second, defendant asked for “[t]he basis for prosecution of the
Defendant for first degree murder, that is, whether the State
relies on the felony murder rule, on the existence of
premeditation, deliberation, and intent to kill, or on some othertheory in seeking conviction of the Defendant for first degree
murder.” The record indicates that defendant at trial was aware
that the prosecution was proceeding under the theories both of
felony murder and of premeditation and deliberation. Finally,
defendant asked that the prosecution set out “[t]he aggravating
circumstances the State contends are present in this case in
order to justify the death penalty.” Under the facts here, the
only aggravating circumstance that might implicate felony murder
is set out in N.C.G.S. § 15A-2000(e)(5). This circumstance
arises where “[t]he capital felony was committed while the
defendant was engaged . . . in the commission of . . . any
homicide, robbery, rape or a sex offense, arson, burglary,
kidnapping, or aircraft piracy or the unlawful throwing, placing,
or discharging of a destructive device or bomb.” N.C.G.S. § 15A-
2000(e)(5) (2003). While the felony underlying a felony murder
conviction can also serve as an aggravating circumstance where a
defendant is convicted of first-degree murder both on the basis
of felony murder and of premeditation and deliberation, see, for
example, State v. Robinson, 355 N.C. 320, 341, 561 S.E.2d 245,
258, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002),
defendant here did not request that the prosecution commit itself
to establishing any of the offenses listed in this circumstance.
Instead he only asked, in effect, whether the prosecution would
seek to submit this aggravating circumstance to the jury at
sentencing.
Thus, defendant did not request that the prosecution
state which underlying felony or felonies it would attempt to
prove to establish felony murder. In addition, even if he had,
the controlling statute states that “[a] motion for a bill ofparticulars must request and specify items of factual
information.” N.C.G.S. § 15A-925(b) (2003). Defendant's motion
did not request specific factual information on which the
prosecution would rely to support any underlying felony that the
prosecution might seek to establish as a basis for felony murder.
Because defendant's motion for a bill of particulars did not meet
the statutory requirements, I do not believe that the trial
judge's denial of the motion was a “'palpable and gross abuse'”
of discretion. State v. Easterling, 300 N.C. 594, 601, 268
S.E.2d 800, 805 (1980) (quoting State v. McLaughlin, 286 N.C.
597, 603, 213 S.E.2d 238, 242 (1975), death sentence vacated, 428
U.S. 903, 49 L. Ed. 2d 1208 (1976)).
Justice ORR dissenting.
I write separately to express my concerns on the issue
of whether defendant was deprived of adequate notice for the
underlying felony alleged in this felony murder case. Defendant
framed this issue in two parts: first, that the trial court
erred in denying defendant's motion to quash the indictment for
failure to allege the particular felony upon which the charge of
felony murder was based; and second, that defendant's request for
a bill of particulars should have been allowed. The majority
concludes that the indictment was proper and that the denial of
defendant's request for a bill of particulars was not error. I
disagree.
From the outset, I note that this issue is distinct and
separate from the issue of whether the short-form indictment is
an adequate instrument for charging an accused with homicide. I
recognize, and concur with, the long-held view of this Court that
the short-form indictment remains a viable homicide-charginginstrument, and I raise no arguments here against its continuing
vitality. My concerns, rather, are focused on the specific
problems endemic to charging an accused with felony murder, a
unique offense complicated by the fact that it requires proof of
one crime in order to establish proof of another.
The verdict sheet in this case reveals that defendant
was convicted of first-degree murder, and though the jury had the
option of premising its verdict on the basis of premeditation and
deliberation, it declined to do so. Instead, its verdict was
based on the fact that the killing was committed “in the
perpetration of a felony,” and that the felony committed was
“attempted rape.” Thus, this case proceeded to this Court on
appeal from the jury's verdict finding defendant guilty of what
is commonly referred to as felony murder and the imposition of a
death sentence.
When a defendant faces a murder charge premised on a
killing that occurs during the commission of a violent felony,
see N.C.G.S. § 14-17 (2003), the prosecution must prove at trial
two things: (1) that defendant's participation in the underlying
crime satisfies the statutory or common law elements of the
offense, and (2) that the victim died during the commission of,
or as a consequence of, the underlying crime.
Of course, self-evident circumstances tend to
demonstrate the second requirement; there would be no capital
murder charge to begin with if someone had not died during the
commission of, or as a consequence of, the violent felony at
issue. For example, the facts of this case amply show that the
victim died a tragically violent death in the weight room of her
apartment complex. The relevant question at trial, therefore,was whether defendant's actions led to her death and, if so, did
such actions constitute the commission of a violent crime that
qualifies as an underlying felony for purposes of felony murder.
In essence, prosecutions in felony murder cases boil down to
proving that defendant committed the underlying crime. The
practical effect of such proof_-as found by a jury by the
standard of beyond a reasonable doubt_-translates into the
following: defendant committed the underlying crime and a death
ensued; therefore, defendant committed felony murder. Put
another way, the outcome of a felony murder trial, when stripped
to its core, hinges on whether or not defendant committed the
underlying offense. If the jury determines he did not (commit
the underlying crime), it simultaneously exonerates him of the
felony murder charge.
In my view, if a defendant's conviction for felony
murder hinges on proving whether or not he committed the
underlying offense, then constitutional notice requirements
demand that he be afforded notice of the crime he must defend
against. See Hodgson v. Vermont, 168 U.S. 262, 269, 42 L. Ed.
461, 463 (1897) (holding that “in all criminal prosecutions the
accused must be informed of the nature and cause of the
accusation against him; that in no case can there be, in criminal
proceedings, due process of law where the accused is not thus
informed, and that the information which he is to receive is that
which will acquaint him with the essential particulars of the
offence, so that he may appear in court prepared to meet every
feature of the accusation against him”); see also N.C. Const.
Art. I, § 23 (“In all criminal prosecutions, every person charged
with crime has the right to be informed of the accusation . . ..”); N.C.G.S. § 15A-924(a)(5)(2003) (criminal pleadings must
contain a “plain and concise factual statement . . . with
sufficient precision clearly to apprise the defendant or
defendants of the conduct which is the subject of the
accusation”). Thus, if the State pursues a felony murder charge
against a defendant, it would appear that the State is obligated
to somehow inform the defendant of the specific underlying felony
it aims to prove at trial. The practical implications of this
specific information go to the heart of a defendant's ability to
prepare for trial and to defend himself through examination of
witnesses, the production of evidence, and argument to the jury.
The majority first concludes that the indictment at
issue was sufficient, relying on our prior holdings dealing with
short-form indictments. The majority then explains that case law
has also established that the State need not choose between
“theories” of its case prior to trial. In its view, defendant
was properly denied his request for the State to identify the
crime he would defend against at trial because the State is not
required to reveal its “theory” of the case before trial. Thus,
according to the majority, the State's “theory” translates into
the identity of the actual crime alleged. In my view, the
State's “theory” of a case--the whats, hows, and whys of a
criminal offense--is not synonymous with identifying the
particular offense alleged. The two are separate and distinct
entities. If, as the majority asserts, the State's “theory” of
the case is indeed commensurate with identifying the specific
crime at issue, and the State is not required to reveal its
“theory” pre-trial, how could an indictment requirement exist for
any crime? This Court has yet to address directly the issue of
what constitutes adequate notice of the underlying felony charge
as it relates to a felony murder prosecution. One obvious
solution would be to require the State to secure a separate
indictment for the underlying offense. However, a review of
felony murder cases over the past thirty years reveals that few
such prosecutions have included such separate indictments.
Although this Court at one point suggested, without elaboration,
that separate indictments were unnecessary, see State v. Carey,
288 N.C. 254, 274, 218 S.E.2d 387, 400 (1975) (“[i]t seems to us
that the better practice . . . would be that the solicitor should
not secure a separate indictment for the felony”), death sentence
vacated, 428 U.S. 904, 49 L. Ed. 2d 1209 (1976), I note that it
did so amid dicta surrounding the issue of arresting judgments,
id. The Court in Carey did not address the separate indictment
issue in the context of providing notice to the defendant of the
charges against him, nor did it include any explanation as to why
it felt a single indictment--for felony murder--was “the better
practice.”
I note that the Court in Carey, when considering the
issue of separate indictments, may not have concerned itself with
notice requirements since existing law at the time had
affirmatively declared that a felony-murder defendant who desires
more definite information concerning the underlying crime “ha[s]
the right to request a bill of particulars.” State v. Crawford,
260 N.C. 548, 556, 133 S.E.2d 232, 238 (1963) (quoting State v.
Mays, 225 N.C. 486, 489, 35 S.E.2d 494, 496 (1945)). However,
the problem then, as now, is that when a felony-murder defendant
moves for a bill of particulars concerning the alleged underlyingcrime, his motion is subject to the discretion of the trial
judge, see State v. Covington, 290 N.C. 313, 343, 226 S.E.2d 629,
649 (1976), and is not subject to review except for palpable and
gross abuse of discretion, State v. Swift, 290 N.C. 383, 391, 226
S.E.2d 652, 660 (1976); see also State v. Williams, 355 N.C. 501,
542, 565 S.E.2d 609, 633 (holding that a “'denial of a
defendant's motion for a bill of particulars will be held error
only when it clearly appears to the appellate court that the lack
of timely access to the requested information significantly
impaired defendant's preparation and conduct of his case'”),
(quoting State v. Easterling, 300 N.C. 594, 601, 268 S.E.2d 800,
805 (1980)), cert. denied, Williams v. North Carolina, 537 U.S.
1125, 154 L. Ed. 2d 808 (2003). Therefore, a felony-murder
defendant's “right” is limited to requesting more definite
information, not to receive it. A review of case law in the wake
of Crawford yields no case in which a felony-murder defendant
successfully petitioned the trial court for a bill of particulars
that would identify the underlying felony he was accused of
committing. As a consequence, any such “right” to a bill of
particulars reveals itself as a paper tiger, a toothless
guarantee.
I note that the felony-murder defendant in Crawford did
not move the trial court for a bill of particulars concerning the
details or identity of the underlying crime, prompting the Court
to advise him thusly: “'If the defendant desired more definite
information he had the right to request a bill of particulars, in
the absence of which he has no cause to complain.'” 260 N.C. at
556, 133 S.E.2d at 238 (emphasis added) (quoting Mays, 225 N.C.
at 489, 35 S.E.2d at 496). The implication of the holding, andany inference reasonably drawn therefrom, certainly suggest, if
not establish, that had the defendant moved for a bill of
particulars, he would have cause to complain. Yet in the instant
case, where defendant did in fact petition for such a bill of
particulars, the majority concludes he, too, is without cause to
complain. If a defendant is deemed without complaint for failing
to move for a bill of particulars, and he is deemed without
complaint when he moves for a bill of particulars but does not
receive the information he has requested, when precisely will a
felony-murder defendant be positioned to complain (that he cannot
mount a credible defense against a crime that may not even be
identified until the trial's end)?
Matters pertaining to the scope and procedure of a bill
of particulars are outlined in N.C.G.S. § 15A-925. The first
three subsections are particularly relevant to the instant case
and read as follows:
(a) Upon motion of a defendant . . ., the
court in which a charge is pending may order
the State to file a bill of particulars with
the court and to serve a copy on defendant.
(b) A motion for a bill of particulars must
request and specify items of factual
information desired by the defendant which
pertain to the charge and which are not
recited in the pleading, and must allege that
the defendant cannot adequately prepare or
conduct his defense without such information.
(c) If any or all of the items of information
requested are necessary to enable the
defendant adequately to prepare or conduct
his defense, the court must order the State
to file and serve a bill of particulars.
Nothing contained in this section authorizes
an order for a bill of particulars which
requires the State to recite matters of
evidence.
N.C.G.S. § 15A-925 (2003). A breakdown of the statute's key
provisions is as follows: (1) defendant needs to specify the
desired information pertaining to the charge that is not included
in the pleading (indictment); (2) he needs to allege that he
cannot prepare his defense without such information; and, when he
does so, (3) the trial court must order the State to provide a
bill of particulars if defendant shows they are necessary to
prepare his defense. In the context of a felony murder charge,
what could be more necessary to enable a defendant to prepare his
defense than to be informed of the actual charge he must defend
against? Again, I emphasize that a conviction for felony murder
is tantamount to proving, beyond a reasonable doubt, that
defendant committed the underlying felony.
In addition, I note that whether spelled out in an
indictment or not, the underlying felony is treated as a distinct
criminal offense. If a defendant is convicted of felony murder,
he is also “convicted” of the underlying felony. In the instant
case, an examination of the issue and judgment sheets reveals
that defendant was convicted of two crimes _ felony murder and
the underlying felony of attempted rape. The case is far from
unique; its verdict emulates those of all other felony murder
prosecutions that resulted in convictions. Thus, despite the
aforementioned notice protections accorded suspects in our
state's Constitution and statutes, a criminal defendant can be,
and frequently has been, convicted of an offense for which he has
not been indicted, and that has not even been identified until
his trial is over.
The particular circumstances of the instant case, in
which defendant was on trial for his life, vividly demonstratethe logistical problems associated with notice in felony murder
prosecutions. After being indicted by short form for felony
murder, defendant filed a pre-trial motion with the trial court
for a bill of particulars concerning details of what the State
intended to prove at trial. At a hearing addressing the motion,
defendant requested that the State be compelled to provide two
pieces of information germane to the discussion at issue: (1)
whether the State planned to proceed on the theory of first-
degree murder premised on premeditation and deliberation or
felony murder; and (2) if premised on felony murder, what would
be the underlying felony the State intended to prove at trial.
After properly denying defendant's request for
information concerning whether the State intended to choose
between theories of premeditation and deliberation or felony
murder, see State v. Avery, 315 N.C. 1, 13-14, 337 S.E.2d 786,
793 (1985) (holding that the state's Constitution does not
require a murder indictment to specifically allege premeditation
and deliberation or felony murder), the following discussion took
place concerning defendant's request for specifying the
underlying felony:
MS. SPURLIN (Assistant District
Attorney): Your Honor, I would say to the
Court, the [S]tate intends to proceed not
only on first-degree murder with
premeditation and deliberation, but also
first-degree murder under the felony murder
rule, and we'll be asking the Court, at the
end of all the evidence, to submit all of
those felonies which the [S]tate has provided
sufficient evidence to go as to the basis of
the felony murder rule. And again[,] that
decision will be made at the end of all of
the evidence.
MR. GASKINS (Defense Counsel): [W]hile
I recognize that the [S]tate contends that itis proceeding on the felony murder rule, the
defendant contends, based on lots of factors,
including the material revealed in discovery,
that there are no controls and that if the
[S]tate just would like to just kind of say,
let's throw it all out there, see how it all
comes out in the wash, I don't think we're
permitted to do that . . . .
. . . I think if the [S]tate has
evidence of felonies, of underlying felonies,
then we're required to know specifically what
those are.
. . . .
MS. SPURLIN: Again, the defendant has
all the discovery. We may have a difference
of opinion as to whether or not this is a
case that will go to the jury for felony
murder. . . . I'm simply saying to the Court
we believe the evidence will support those.
We are not required to state those prior to
trial.
I don't know that we're in a position to
be able to state that to this Court. Again,
the issue is what, at the end of all of the
evidence, has been supported by the evidence
to be presented to the jury. It's not
required and again I don't believe the
[S]tate's in a position to be able to do
that.
THE COURT: Well, what is ultimately
going to go to the jury is going to be
decided by me after I have heard all of the
evidence.
(Emphasis added). In the aftermath of this discussion,
the trial court informed defense counsel thusly: “Mr. Gaskins,
unfortunately, from what I've heard since you made that motion, I
don't know that they know what the underlying felony is going to
be other than there are two possibilities _-one, robbery, a
theory no one believes in law enforcement or the girlfriend, and
the other has to be sex. Other than that, I don't know of any
theory.” The trial court then proceeded to deny defendant'smotion for a bill of particulars concerning the particular
underlying felony defendant was alleged to have committed.
Thus, to that point, amid pre-trial proceedings, the
trial court informed defendant that: (1) the State did not know
which underlying felony it would attempt to prove; (2) the State
was not required to allege before trial which underlying felony
it would attempt to prove; and (3) defendant was not entitled to
know which particular felony or felonies he would be defending
against at trial.
Then, at the close of all the evidence presented at
trial, the trial court weighed whether or not the State provided
ample evidence to warrant a jury instruction for the following
underlying felonies: (1) robbery, (2) kidnapping, and (3)
attempted rape. The trial court dismissed the robbery allegation
out of hand and then heard arguments regarding kidnapping and
attempted rape. After deliberating through a lunch recess, the
trial court returned and, without elaboration, announced it would
instruct the jury on felony murder, with attempted rape being the
underlying felony.
Thus, at some point after the close of all the evidence
presented at trial, defendant was notified of the specific crime
he was expected to defend against. Of course, at that juncture,
the information was of no use; the evidentiary portion of the
trial was over. Defendant, facing the prospect of a death
sentence, had defended the entire evidentiary portion of his
trial without the benefit of knowing the specific crime the State
intended to submit for the jury's consideration. To make matters
worse, the trial judge's pre-trial prediction as to what the
underlying crime may be--“robbery” or “sex”--provided littleuseful guidance and, in fact, proved partially erroneous. In
addition to the two crimes suggested by the trial court during
pre-trial proceedings, a third crime_-“kidnapping”_-emerged as a
potential underlying felony at trial, and in fact was offered as
such at the close of evidence by the State. As a consequence,
defendant proceeded through trial attempting to defend the
charges against him unaware of whether the facts and
circumstances of his case would lead to proving attempted rape,
kidnapping, robbery (and/or even perhaps attempted robbery, which
was also proposed and discussed by the State's counsel). The
very idea that the State can allege unspecified criminal
activity, present factual evidence, and then seek to define the
specific crime in the aftermath of such evidence is, in fact,
contrary to our well-established principles of criminal justice,
a hallmark of which is the constitutional guarantee that a
criminal defendant be given notice of the crime that he must
defend against.
My research yields no other example of a criminal
defendant who faces the prospect of trial without prior knowledge
of the specific crime he is alleged to have committed and must
defend against. In fact, there are scores, if not hundreds, of
cases that conclude that a criminal defendant must be so
informed. See, e.g., State v. Nugent, 243 N.C. 100, 101, 89
S.E.2d 781, 783 (1955) (holding that the constitutional right of
a defendant to be informed of the accusation against him requires
that the indictment or warrant set out the offense with
sufficient certainty to identify it and enable defendant to
prepare for trial). See also State v. Lorenzo, 147 N.C. App.728, 734, 556 S.E.2d 625, 629 (2001); State v. Burroughs, 147
N.C. App. 693, 695-96, 556 S.E.2d 339, 342 (2001).
If, as the majority asserts, the procedural
circumstances of the instant case allow the State to proceed
against a felony-murder defendant without identifying the crime
he is expected to defend against, would not such a holding run
counter to this Court's long history of rejecting criminal
charging vehicles that fail to identify the specific criminal
offense at issue? Our case books are replete with cases in which
indictments and other notice-providing documents have been deemed
fatally defective for far lesser reasons than the failure to
identify the crime. See, e.g., State v. Smith, 267 N.C. 755,
756, 148 S.E.2d 844, 844-45 (1966) (holding that an indictment
charging that defendant broke and entered “a certain building
occupied by one Chatham County Board of Education, a Government
corporation” was fatally defective in failing to identify the
premises with sufficient certainty); State v. Price, 265 N.C.
703, 704-05, 144 S.E.2d 865, 866-67 (1965) (holding that an
indictment that does not incorporate the word “feloniously” or
charge that the offense is a felony cannot support a conviction
of an offense greater than a misdemeanor); State v. Overman, 257
N.C. 464, 468, 125 S.E.2d 920, 924 (1962) (holding that where the
indictment charged the name of the injured as “Frank E. Nutley”
while the proof at trial showed the injured was “Frank E.
Hatley,” there was a material variance warranting a nonsuit); and
State v. Finch, 218 N.C. 511, 511-12 11 S.E.2d 547, 547-48 (1940)
(holding that where the name of one of the defendants did not
appear in the indictment, it was fatally defective as to him,
notwithstanding that his name appeared on the envelope, that hisname was placed on the court dockets prepared for the judge and
counsel, and that he was fully informed of the charge against
him).
Thus, while this Court has held that an indictment_-
either by itself or in tandem with other notice-providing
instruments, such as a bill of particulars_-may prove
insufficient for failing to reference details of a particular
crime, such as an individual element of the offense, the precise
location of an offense, or even whether the alleged offense
constituted a felony, the majority here concludes that such
instruments will not be deemed deficient if they fail to identity
the crime itself. Such a conclusion, in my view, not only defies
logic; it is without support under the law. As a consequence, I
cannot offer my support to the majority's conclusion.
In the instant case, defendant faced a first-degree
murder conviction, and a possible death sentence, if the jury
determined that the victim was killed during defendant's
commission of a violent felony. The indictment did not specify
the underlying felony, and when defendant sought a bill of
particulars in order to identify the felony, the State argued it
did not have to provide such information and contended that any
qualifying felony would eventually emerge from the evidence
presented at trial. The trial judge denied defendant's motion
and explained to defendant that in all likelihood, he could
expect to defend against only two possible offenses_-robbery or
sex. Then, after the close of all evidence, the State proffered
as many as four possible underlying felonies, with the trial
judge ultimately choosing one_-attempted rape_-as the basis for
the felony murder charge. As a consequence of the foregoingchronology, defendant learned of the crime he would have to
defend against at a time when he could no longer plan or mount
any defense against it. Such procedure flies in the face of any
rational interpretation of our state's constitutional mandates,
which guarantee a criminal defendant the right to pre-trial
notice of the crime he is alleged to have committed, and the
crime he must prepare to defend against.
In my view, the trial court's failure to ensure that
defendant was informed of the crime he would defend against at
trial amounted to prejudicial error. As a result, I respectfully
dissent from those portions of the majority opinion that address
defendant's pre-trial motion for the State to identify the
specific underlying felony it intended to prove at trial.
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