*1
263
IN THE SUPREME COURT
STATE v. BURR
(1995)]
N.C. 263
[341
denied, - U.S. -,
Based on the nature of this above, noted a matter of law guishing features we cannot conclude as disproportionate. We sentence of death was excessive or proceed- and sentencing hold the defendant received a fair trial ing, prejudicial error. free ERROR.
NO
STATE OF NORTH CAROLINA JOHN EDWARD BURR No. 179A93 (Filed 1995) 8 September capital Jury (NCI4th)— jury selection—
1. §§ trial — challenges for cause — denial of rehabilitation — exercise court’s discretion discretion judge shows the trial exercised his
The record pretrial seeking to be general motion denying defendant’s every juror attempt prospective chal- rehabilitate allowed properly his dis- cause the State and then exercised lenged for specific requests denying to rehabilitate cretion jurors them for cause prospective challenged after the State three unequivocal opposition penalty. on their the death based Jury 2d, Am Jur 279. § regarding capital punishment
Comment Note. — Beliefs -Witherspoon disqualifying juror capital post as case — ALR3d cases. 39 550.
STATE *2 capital jury Jury (NCI4th)— selection — death 2. § trial — conflicting penalty for cause answers — excusal views — equivocal prospective juror gave conflicting Although a ability impar- questions to follow the law responses to about her tially penalty views, the trial court did not of her death because prospective juror where some of her excusing in err opposed penalty responses that she was to the death revealed penalty would cause her auto- and that her views on the death matically regardless for a life sentence of the circum- to vote responses thought she her death stances, and her showed that penalty make it difficult for her to follow the law and views would juror. carry as a thus out her duties Jury
Am 2d, Jur 279. § regarding capital punishment Note. — Beliefs Comment capital post -Witherspoon disqualifying juror in as case — 39 ALR3d 550. cases. Jury (NCI4th)— jury question not § 3. selection — attempt juror to stake out prosecution
In a of defendant for the murder of a four-month- child, prosecutor’s inquiry prospective whether a old as to juror impartially guilt focus on defendant’s or innocence could motherly regardless living of the child’s conditions and lack of impermissible attempt juror care was not an to ascertain how the facts; question upon given rather, state of would vote properly prosecutor’s right allowed the exercise of the jury. an secure unbiased Jury 2d,
Am Jur 284. § Jury capital jury pref- (NCI4th)— 4. § trial — selection — penalty question erence for death — exclusion precluded inquiring
Defendant was not into whether a automatically penalty prospective juror would vote for the death Illinois, holding Morgan in violation of the 504 U.S. juror preference she “a where defendant asked the whether had penalty opposed imprisonment”; for the death as to life the trial objection question as court sustained the State’s to defendant’s rephrase question, form and stated that defendant could but so; chose not to do and defendant was allowed to ask juror imprisonment give if she would be able to life the same penalty. consideration as the death
STATE v. BURR 2d, Jury Am § Jur 279. punishment regarding capital
Comment Note. — Beliefs disqualifying capital juror post-Witherspoon as case — cases. 39 ALR3d 550. capital (NCI4th)— jury
5. Criminal Law 1322 § selec- trial — parole question by prospective juror tion — — instruction meaning required of life sentence prospective failing The trial court did not err to instruct a juror, panel, and the meaning on the of a life sentence when prospective juror defense counsel asked the if he would be able *3 imprisonment penalty appropriate to consider life as an for first- murder, juror replied, degree privilege and the “is that without of parole?” 2d,
Am Jur Trial 1443. § (NCI4th)— 6. Evidence and Witnesses murder of § similarity child — misconduct toward child’s of cir- mother — admissibility identity to show cumstances — prosecution In a of first-degree defendant for the murder of a child, testimony by by four-month-old mother child’s and by concerning others defendant’s misconduct toward the mother her, parts body choking bruising various of her with his hands fingers, bending her hands behind her back to make her say and do whatever he 404(b) wanted was admissible under Rule identity perpetrator to show defendant’s as the of the crime that, charged death, where the evidence showed at the time of her the child victim was covered with bruises similar to those by upon mother, including inflicted defendant bruises in the shape handprints fingerprints neck; of on the cheek and on the jthe by legs child suffered fractures both caused the knees forward; being bent the child suffered fractures in both shoulders being backward; inflicted the arms bent and the unusual injuries particularly inflicted on the victim were thus similar to upon those inflicted mother and the unusual injuries particu- acts which would have caused the victim’s were larly against similar to those acts defendant committed testimony probative outweighed mother. value of this potential prejudice Furthermore, against for unfair defendant. testimony assuming concerning defendant’s threats to kill infidelity gun at her pointing the mother for and his of was not
STATE testimony was competent identity, the admission of show competent tending light of evidence harmless error in other perpetrator the murder. N.C.G.S. defendant was the of show that 8C-1, 404(b). Rule §
Am Jur 2d, Evidence 421. § (NCI4th)— admit- 7. and Witnesses evidence § Evidence limiting identity sufficiency instruction ted to show — pattern instruction that evidence of defend- The trial court’s was prior toward the child victim’s mother ant’s misconduct identity “solely purpose showing admitted person charged case, if it was who committed the crime in this “may it, only lim- committed,” jury for the and that consider limit the purpose for which it was received” was sufficient to ited identity with- jury’s consideration of this evidence the issue requested that the out defendant’s further instruction as such evidence evidence of bad character. consider 104.15. N.C.P.I.—Crim. 2d, §
Am Jur Trial 1141. (NCI4th)— 8. Witnesses murder of §§ Evidence inadmissibility third-person child —DSS to show records — guilt impeachment outweighed value — *4 prosecution of a four-month- In a of defendant the murder County child, relating records the Alamance DSS to the one- old year supervision following investigation the child’s mother guilt child’s death were not admissible to show the mother’s of the murder where the records showed that the mother parental difficulty in duties having performing her but contained violently physically no evidence that the mother abused acted any probative Further, toward her children. value this evidence testimony impeach nothing to mother’s she had done by substantially wrong outweighed to her other children was delay defendant had been danger of confusion undue where impeach similar to the evi- allowed mother evidence in the dence in the DSS records and the evidence DSS records merely 8C-1, have cumulative. N.C.G.S. Rule 403. § would been seq. et 2d, Am Jur Evidence §§ (NCI4th)— denial of continuance — no § 9. Criminal Law 261 rights of confrontation or effective assistance violation and effective assistance rights Defendant’s of confrontation by of his were not violated the trial court’s denial of counsel of an infant to for continuance of his trial for the murder motion opportunity to evaluate the need for a give defense counsel the expert aid the defense and to file motions for the medical attorneys appointed necessary originally funds where were September 1991; represent August 1991 and 5 attorneys copied attorney’s received and the district defendant’s records; file, including the victim’s medical investigative request, the removed defendant’s court- trial court appointed counsel on 15 December 1992based on irreconcilable attorneys appointed differences with defendant and two other represent defendant; trial on 25 originally the case was set for upon January defendant’s motion to 1993 but was continued the case 1993; March defense counsel filed a motion to continue attorney thirty days; informed for an additional the district file con- defendant’s new counsel on 30 December 1992 that the reports complete and medical was avail- taining investigative of doc- them; the file included the names and addresses able to hospitals the victim at two and the victim’s tors who had treated attorney hospitals; also medical records at both the district hospi- attorneys x-rays at both informed defendant’s about taken x-rays, tals, persons photographs observe these to contact to request bring examiner, and his that doctors taken the medical portions the victim’s drawings, charts and models of to court injuries found; thus had body in were and defense counsel which expert an two regarding evidence the need for access to medical violated prior rights to the trial. Nor were defendant’s months ground on the that coun- the denial of his motion for continuance contained adequate have time to interview witnesses sel did not investigate in order to report in a about the victim’s mother DSS in the report was referenced third-party guilt where the DSS records, both of report and the victim’s medical investigative prior to file made available to defense counsel which were January 1993; requested the full counsel could have defense report *5 time; and, event, in the DSS did report DSSat this from third-party guilt. evidence relevant to not contain 2d, 97. § Am Jur Continuance (NCI4th)— § and Witnesses instruction
10. Evidence required nonflight not jury failing court not err to instruct the
The trial did may nonflight the scene be consid- evidence of defendant’s from the indi- determining ered in whether combined circumstances showing or a of nonguilt. cate innocence 2d, seq. Jur Evidence 532 et §§ Am argument having (NCI4th) jury Criminal wit- § 11. Law 466 — — competence attack on nesses in court — not counsel’s prosecution a child in which defense In a for the murder of report hospital into worker counsel read evidence social investigation social about her of the child’s death because the day worker, miscommunication, due to a was out of town the she testify, prosecutor’s jury argument concerning was to necessity talking taking a to witnesses before case to court not an having the witnesses in the courtroom was attack on professionalism an competence and of defense counsel but was attempt to minimize the effect of the evidence contained report improper. worker’s and was not social 2d, §§ Am Jur Trial 686-688. (NCI4th)— argu- jury §
12. Law murder Criminal trial — prior acts defendant — consideration to show ment — identity prosecution prosecutor’s jury in a argument The for the child, “Now, malice, arms, of a who acts with who bends murder hits, chokes, sits,” who who acts malice? who There he improper jurors misstatement of law that could infer an identity perpetrator his charac- defendant’s as the from malicious proper jury ter was a fact that the could con- but reference prior identity. acts on the issue of sider evidence 2d, 423. § Am Jur Evidence first-degree (NCI4th)— jury Criminal §
13. Law 465 murder — argument provocation negating deliberation — jury argument prosecutor’s statement in a trial for first-degree a child to show murder of that defendant needed provocation” an “adequate negate in order deliberation was not prevented law incorrect statement of the which Rather, properly second-degree a verdict of murder. considering *6 COURT IN THE SUPREME v. BURR STATE (1995)] N.C. 263 [341 provocation which is kind of prosecutor referring was murder and reduce the negate malice
insufficient suddenly act to incite defendant to but is sufficient manslaughter deliberation. and without 2d, Evidence 643-647. §§
Am Jur (NCI4th)— murder § and Witnesses 14. Evidence relevancy—com- child’s fear of child —another defendant — testimony lay petency of child, the mother’s testi- prosecution for the murder of In a was scared of defendant mony another of her children the familial the state of and admissible to demonstrate relevant relationship period during murder preceding the in the brief Further, testi- in the mother’s home. which defendant resided like kids when mony by the children “didn’t act neighbor rationally the witness’s based on was around” was [defendant] relationship defend- competent perception and was to show murder victim. children, of whom was the had with the one ant testimony mother told her that Also, worker’s that the a social defendant was admissible children was scared of one of her testimony. the mother’s corroborate Expert Opinion Evidence 360. 2d, §§ and
Am Jur (NCI4th)— medical § and Witnesses 15. Evidence subpoena duces tecum records — medical records proper for defendant to obtain method by custody is a sub- possession, or control of the State in the
poena duces tecum. 24. 2d, § Witnesses
Am Jur furnishing (NCI4th)— of medical Law 252 § 16. Constitutional properly psychological denied records — motion requiring that all medical for an order Defendant’s motion mother be an infant murder victim’s psychological records of per- other five entities and available to defendant made to the mother psychological services providing sons medical properly denied expedition and was fishing to a amounted indicated that DSS files where defendant contended trial court might depression and her records the mother suffered children, but the DSS records contained abuse toward her reveal violently physically abused or acted no evidence that the mother *7 her children. toward 2d, Law 998. §
Am Jur Criminal (NCI4th)— anonymous telephone § 17. Criminal Law question juror— hypothetical —communication call — inquiry jury panel required not by failing to con- The trial court did not abuse its discretion jury panel inquiry alleged an of the about an communication duct juror pastoral during a seated and a counselor between penalty phase attorney capital trial a local of defendant’s where during- hearing the court an in camera that he had informed anonymous penalty phase pur- during an call from a received ported pastoral hypothetical question asked him a
counselor who juror who to a verdict and is still a as to whether a has assented juror may verdict; change in the case thereafter his the caller did merely hypo- being held, where the trial was if not not indicate thetical, attorney particular juror; properly or the name of a juror may impeach the caller that a not the verdict after informed open juror it has been rendered and received in court and that the questions if judge should address his to the trial the scenario was real; hearing and the in camera thus revealed no misconduct juror in defendant’s trial. 2d, seq. §
Am Jur Trial 1562 et (NCI4th)— capital sentencing— 18. Criminal Law § aggravating heinous, atrocious, or cruel circumstance— jury argument comparison published opin- to facts — gross impropriety prejudice ions — — absence arguendo prosecutor capital in a
Assuming that the trial improperly especially heinous, encouraged the to find the atrocious, aggravating comparing or cruel circumstance published Supreme facts in this case with the facts in Court opinions upheld findings which of this circumstance and that this argument gross impropriety, amounted to a defendant failed to prejudiced by show that he was the trial court’s failure to inter- light overwhelming vene ex motu in of the evidence that the mero especially heinous, atrocious, killing was or cruel. 2d,
Am Trial 610. § Jur
STATE (NCI4th)— capital 19. Criminal § Law sentencing jury— argument prejudice evidence — absence of —facts
Assuming arguendo prosecutor capital that the in a trial improperly traveled outside the record during argument especially heinous, atrocious, aggravating or cruel circum- by stating injuries stance that he didn’t know when to the infant you victim’s ears occurred but injuries he would “submit to [the probably prior done to the time before the final blow that were] head,” struck . . . prejudicial her this statement was not error light of overwhelming amount of killing evidence that the especially heinous, atrocious, or cruel. 2d,
Am Jur Trial 632. § 20. Criminal (NCI4th)— capital sentencing Law 1326 § —miti- *8 gating proof circumstances — burden of — instruction proof
The trial court’s instruction on the burden of finding mitigating plain circumstances did not constitute error. 2d, seq.
Am Jur Trial 1441 et §§ 21. (NCI4th)— Criminal Law heinous, atrocious, § 1343 aggravating
cruel circumstance — instruction not unconsti- tutionally vague especially
The trial court’s heinous, instruction on the atro- cious, aggravating or cruel circumstance was not unconstitution- ally vague. 2d, seq.
Am Jur Trial §§ 1441 et 22. (NCI4th)— capital Criminal Law sentencing jury § 1329 — argument unanimity for “no” answer —Issue Three — prosecutor
The did not misstate the law when he informed jury capital in a sentencing proceeding that it had to be unan- imous in determining mitigating that the circumstances out- weighed aggravating circumstances before it could answer “No”to Issue Three. 2d,
Am Jur Criminal Law § 609. (NCI4th)— 23. nonstatutory mitigating Criminal Law 1323 § good jail mitigating conduct value— circumstance — — instruction jury The instructing trial court did not err that it could nonstatutory mitigating per- refuse to consider the circumstances COURT THE SUPREME IN
STATE jail if it the evi- deemed good conduct taming mitigating value. to have no dence 598, 599; Trial §§ 2d, §§ Criminal Law
Am Jur 1444. sentencing jury capital (NCI4th)— Law 442 §
24. Criminal — community argument jury as conscience — capital sentencing properly in a argue prosecutor The could County. of Alamance jury was the conscience proceeding that the 2d, § Trial 569. Am Jur sentencing capital (NCI4th)— § Criminal Law
25. — mitigating nonstatutory argument limit —no circumstances capital sentencing proceeding in a prosecutor’s argument nonstatutory mitigating cir- limit to the number of that there is no improper. may grossly be submitted was cumstances 572. 2d, § Am Jur Trial (NCI4th)— sentence not dis- death § Law 1373
26. Criminal proportionate first- imposed upon defendant for the of death
A sentence excessive or child was not murder of a four-month-old degree penalty imposed in similar cases where disproportionate to theory premeditation and was convicted on defendant deliberation; *9 circumstance that jury aggravating found the atrocious, cruel; the infant was especially heinous, or was killing death; the child cruelly by being and beaten to murdered shaken defendant, the mother’s live-in in the care of had been left boyfriend, murder; had the mother’s of the defendant at the time position violated a of discipline her children and permission to hospital until the child to the trust; refused to take the defendant ambulance; suffered an the child threatened to call mother indicating on her neck body, including bruises bruises all over her neck; the child “very tightly” around the grabbed she had been hyper- by being knees legs caused fractures both suffered arms inflicted in both shoulders extended and fractures fracture from backward; a skull pulled the child received being object; a blunt the child of the head with being struck in the side shaken-baby syn- eyes which indicated both bleeding had behind STATE N.C.263 drome; injuries and the child suffered these over a prolonged period of time. 2d,
Am Jur Criminal law 628. § Sufficiency purposes evidence, penalty, for of death statutory aggravating to establish circumstance that mur- heinous, der was cruel, depraved, post-Gregg the like — cases. 63 ALR4th 478.
Justice Whichard concurring part. the result in Frye joins concurring opinion. Justice in this Appeal pursuant right as of to N.C.G.S. from a 7A-27(a) judg- § ment imposing by Stanback, J., a sentence of death entered at the 1 March 1993 upon Superior Court, County, Criminal Session of Alamance jury
a guilty first-degree verdict of murder. Defendant’s bypass Appeals motion to imposed judgment the Court of as to the additional felony for assault on a female and conviction for child abuse July Supreme was allowed 1994. February Heard in Court 1995. Easley, Attorney General,
Michael F. Scouten, B. Ellen Special Deputy Attorney General, the State. for Ray Hunter, Jr., Appellate Malcolm Defender, by M. Janine Crawley, Appellate Defender, defendant-appellant. Assistant ORR,Justice. September 1991,
On 16 defendant was for the indicted first- degree O’Daniel,who, death, murder of Tarissa Sue of her the time old, was four months and in one addition indicted for count of felony joined child abuse. These charges were for trial with defend- appeal ant’s judgment finding guilty from a consolidated defendant two counts of on a assault female entered November 1991 District County. Court, presentation Alamance Following State’s case, granted charge trial court defendant’s motion to one dismiss of assault on a female. April 1993, finding
On 16 returned verdict guilty remaining Following capital of the three charges. sentencing *10 proceeding, the sentence of for recommended a death the first- degree murder conviction. The sentenced in accord- judge defendant v. BUEE jury’s regarding the murder convic- recommendation
anee with the thirty imprisonment days’ for him to a term of tion and sentenced judgment on the judge arrested a female conviction. The assault on judgments convic- felony From these and conviction for child abuse. tion, appeals. defendant following: Tarissa Sue evidence tended to show the
The State’s April Bridges Porter and (“Susie”) was born on 1 to Lisa O’Daniel Wesley time, Susie was Bridges’ husband at that John O’Daniel. When defend- old, Bridges began having sexual relations with a few weeks separated at the When Susie was six ant, was from his wife time. who an affair old, having his wife was weeks John O’Daniel discovered Bridges and that he wanted a divorce. with defendant told Subsequently, Bridges and her four children moved in June brother, Bridges’ a into trailer located next a trailer owned trailer June, Near end of defendant moved into the Donald Wade. Bridges Bridges with and her four children. testified that when pretty per- her, good like a defendant first moved in seemed “[h]e weeks, physically son,” that after few he became abusive toward but a her, painful manner, threatening her with bending her hands back a body, her. she gun, bruising choking Bridges her testified that after she scared of remained with defendant this abuse because “was him.” day Bridges August 1991, argued
On 24 defendant and most of the previous spending night wife’s and his over defendant at his house parents’ approximately her 6:00 refusing Bridges to take house. At tripped p.m., Bridges’ carrying son while he- was Scott over cord testified, Bridges however, Susie. that she examined Susie after the body except marks redness fall and did not find on her some disappeared. arm, Bridges her which further testified that later steps evening, sitting while was on the trailer with Susie and she yard, Bridges in her lower mowing defendant was defendant hit back with his fist. her, trailer, hit went over to her Bridges
After defendant brother’s eventually joined Bridges began where her. Defendant arguing again, Bridges left the trailer with the infant child. Bridges her in the testified that defendant followed her and shoved holding Bridges was told back while she child. also defendant that child, “he Bridges he to make her hurt the but testified that going just trailer, kept running his mouth” and followed her inside her still arguing.
STATE v. BURR (1995)] [341 trailer, Bridges placed Once inside the in her swing Susie infant living Bridges located in the room. testified that while she was still holding pushed couch, the swing, onto defendant her down onto the causing attempted swing. Bridges almost her to knock over the When get up couch, to pushed again from the defendant her down and told her Bridges not to leave the couch. on sat the couch few minutes up hallway and then walked stood and down into her bedroom.
Bridges testified that defendant followed her to bedroom and pushed waterbed, causing her onto the the waterbed to break.
Bridges broke, testified that after the waterbed defendant “started talking everything Bridges began like was fine.” and defendant then repairing the waterbed. they
Bridges testified as repairing waterbed, that were Susie cry began up to and Bridges, “go get that defendant told on there and her, anyway, spoiled.” that’s all the hell she wants she is so damned Bridges swing took the child out of her and her brought back to the bedroom, where she laid her on fin- the waterbed. After defendant fixing bed, Bridges helped sons, Tony, ished her two Scott and prepare bed, son, Jr., her youngest John, for while at remained Donald Bridges “got Wade’strailer. testified that also to she [Susie] sleep” placed “baby Bridges’ and her in her bed” located in bedroom.
Bridges placed bed, when she Susie in appeared testified that her she physically to be fine and that not she did have marks on her. Bridges then went back to the Wades’ trailer wash to the dishes.
Bridges trailer, Tony testified that when she her and were left Scott ready bed, asleep bed, Susie was in her and work- defendant was ing plug living on a in the room. son
Bridges’ go Scott testified that after his mother left to trailer, bed, Wades’ and after he went he awakened “ham- awoke, crying. mer When noises.” Scott he heard Susie Scott testified that, “mumbling” that he then heard after heard defendant he stopped crying. mumbling, Susie forty-five approximately minutes, Bridges After returned her found her testi- swing living Bridges trailer and Susie in in the room. fied told pacing that defendant was the floor this time and that he Bridges her to at the he had look bruises Susie. Defendant told up swing moved the child to the after she woke and that some grease. Bridges attempted marks were to wash these marks off but they grease. not discovered were COURT IN THE SUPREME ears, child’s she bruises in the
Bridges testified that observed arms, Bridges further testified legs. on her neck, her on her under eyes right, did not act right,” not “look that she that her did Bridges, respond anything. According she did smile *12 hospital, Bridges to so called to take the child the defendant refused Chapel Wades’ Hospital in Hill from the Carolina Memorial North trailer. person hospital, at who instructed Bridges to a the
After talked examined, she bring to be she told defendant that her to the child in hospital, to and if he not take her the call an ambulance did would hospital. finally Bridges to testi- agreed to take Susie the defendant time, “jerking.” Bridges also testified that that at this Susie was fied they Hospital get Memorial and that not know how to to she did County Hospital. way hospital, the up at On the ended Alamance gas. stopped gas at a station for County Hospital the at 2:55 a.m. was admitted to Alamance Susie doctor, Dr. August Bridges examining 1991. told the on 25 day holding had child the Willcockson, that her son fallen while and she Dr. examined the child observed that before. Willcockson eyes “poorly responsive.” The wan- and child’s were was unconscious eye any particular following,” right and her dering but did not “have child no right. Dr. Willcockson observed that the made deviated appeared lethargic. and that her movements The child oral sounds eyes, face, arms, appeared which twitching occasional of had respiratory to Dr. Willcockson. The child’s according be seizures multiple swellings all her fast, and she had bruises and over rate head, scalp, ears, face, neck, portion arms, legs, and main of her spot were Further, the soft on the child’s head where the bones trunk. symptom bulging, which Dr. Willcockson testified indi- forming was Dr. also Susie swelling in the head. Willcockson testified that cates feeling” legs both which meant bones “grating had a arms upon grating each other and which indicates bone fractures. were rays broken, arms as well The X revealed that both of the child’s were rays thigh as The X further showed that the child both her bones. posterior rib had suffered some fractures. trauma, multiplicity on the
Dr. Willcockson testified that based story falling Bridges’ of another child with Susie did account immediately Bridges he asked if Susie had been injuries, responded in abused, negative. Dr. Willcockson Bridges which high suspicion such of abuse that he “felt that there was testified IN THE SUPREME COURT
STATE department matter” that he contacted the sheriffs and social serv- ices. Dr. Willcockson further testified that based on the bruising head, around the seizures, bulging and the spot, of the soft he opinion formed the that the child had suffered some form of “closed injury.” head a.m.,
At 5:15 the child was transferred ambulance to the inten- Hospital sive care unit at Chapel Memorial Azizkhan, Hill. Dr. who pediatric was the chief of surgery professor and associate surgery time, UNC Medical School at this testified that he examined Susie at 6:00 a.m. Dr. Azizkhan testified that Susie had bruising neck, of the particularly on the left side of the two-centimeter-by-two- neck and a centimeter area underneath the portion mastoid and the mandibular of her neck. Dr. Azizkhan observed bruising right on the side of the face ear, that extended onto the bruising circumferential right arm, and bruising on the Dr. back. Azizkhan testified that the child’s pressure very blood baby “was low for a age” and that she had [her] *13 lost “half of her blood volume” from bleeding. internal Dr. Azizkhan further testified that the bones of a age child Susie’s quite “are you malleable and soft” and that “when see fractures that magnitude baby, you are of this in a know that the amount of force that’s very been delivered significant, much, is greater much than simple from a fall.” Dr. Azizkhan injuries testified that to inflict the legs require the child’s “would either a severe direct blow or some snapping activity” kind of a and that the fractures to the child’s arms “could be from grabbing intense of the arm and torquing pulling and the child’s arms backwards.” In Dr. opinion, Azizkhan’s Susie’s injuries were “inflicted” instead of “accidental.” Merten, professor
Dr. David a radiology pediatrics of at UNC Medical School and chief of pediatric the section of radiology at Hospital, Memorial rays studied the child’s X and testified at trial. Dr. rays
Merten testified that X these revealed fractures in both thigh early bones with healing. evidence of In opinion, Dr. Merten’s these leg eight days fractures were rays to nine old. The X also revealed fractures on or near both shoulders. These fractures did not show signs healing, and, they in Dr. opinion, days Merten’s occurred five later than leg fractures. Dr. Merten testified that the fractures in legs produced simply by “were bending violence, the knee with significance force, forward, and hyperextending and [sic] [the knees]” that the shoulder fractures were “inflicted and incurred” “taking the arms and bending Regarding injuries them back.” head, to the THE SUPREME COURT IN v. BURR depressed fracture had a skull
Dr. testified that child Merten actually child had suffered broken and that the skull was where the fracture. Dr. Merten testified injury this to the brain underneath very place” very in a injury “a unusual fracture unusual this head relatively blow that area a confined direct and “it would take Merten testified that this produce type this fracture.” Dr. further hospi- injury before her admission to the occurred within hours head Chapel Hill. tal in Byron Tennison, neurologist a child at Memorial Michael
Dr. a on Susie. Dr. Tennison Hospital, regarding testified CT scan done only fracture, depressed a skull showed not testified that scan injuries” bleeding behind both but intercranial also “multifocal eyes “highly eyes. bleeding behind both is Dr. Tennison testified that “spe- baby syndrome,” he as a suggestive of a shaken which defined injury injury baby whiplash has a kind of cific where the kind that, forth.” Dr. further testified shaken back and Tennison being “quite fracture, a the nature of the skull the child suffered based on object” it of the head and that ... some blunt side force taken deal of force to cause this fracture. great would have Hospital attempted to reduce the trauma at Memorial team they brain, obtain a consistent swelling of the child’s but could not and, twenty-four hours, they response, could reduce after pronounced approxi- dead pressure in the brain. The child was at mately p.m. August 1991. Dr. Tennison testified that 6:30 “multiple head resulted child as a trauma her died result eventually swelling of the brain and herniation contusions brain death.” brain per- Chancellor, pathologist Hospital, Dr. Karen Memorial *14 multiple autopsy the Dr. Chancellor observed formed an child. by with the neck that were consistent marks caused bruises on child’s marks a the consistent with hand and bruises on cheek were bruises on fingers. Dr. Chancellor further observed round caused back, bruises, a on which upper the chest area and round bruise the object. Dr. also opinion, caused a blunt Chancellor her were back of the head. observed bruises on the following: presented to show the
Defendant evidence tended evening he mowed August on the Defendant testified that time, yard Bridges Bridges’ During the at trailer until dark. this a steps having with Defendant denied con- sitting on the back Susie. mowing. Bridges while he was Bridges striking with versation STATE mowing yard, joined testified that when he the Defendant finished he daughters, Misty and her Donald Bridges children and Wades’ and Christy, at approxi- the Wades’ trailer and watched television thirty mately thirty-five Bridges minutes. Defendant and argu- were ing parents’ time about Bridges going this to her house. Defendant finally Bridges “got testified that enough mad went out the [and] trailer, her taking door” to with her. Susie Defendant testified that he remained the Wades’ trailer with sons Bridges’ and Wades’ daughters. passed,
Defendant testified that after a few minutes he told Scott Bridges spend night parents, tell that if she wanted to the her and, he take her left, approximately would to their house. Scott ten later, Bridges minutes returned to the Wades’ trailer without Susie. Bridges
Defendant testified that told he that he would take her to her parents’ spend night. Approximately later, house to the five minutes and Bridges defendant left Bridges’ the Wades’trailer and returned to pushed playful trailer. Defendant testified that he her in manner on way to her trailer. they trailer, in Bridges’ Defendant further testified that once were Bridges he and went to the back bedroom where waterbed was time, located. Defendant testified that at this was in Susie her crib in pushed Bridges this bedroom. Defendant sex,” onto waterbed “to have top her, and when he fell on the bed broke. Defendant and attempted repair then Bridges the bed. Defendant testified that they mattress, after drained the water from the bed and removed dishes, went Bridges to the trailer to and began Wades’ wash he drilling the bed. After he started drilling, defendant looked into crib to up, Susie’s eyes see if he had woken her he noticed and that her open. stopped picked were Defendant testified that drilling, he up child, living room, put took her into the her in the swing, and up propping her bottle with blanket. wound the swing Defendant pushed it. and Bridges trailer,
Defendant testified when to her returned she helped put remaining parts him together. of the During bed time, kitchen, walked swing defendant and he noticed that the stopped had was holding that Susie the blanket with her head over to side. Defendant returned to the bedroom. Defendant tes- bed, after he Bridges repairing tified that finished he took the swing brought child out her back her crib. As *15 COURT IN THE SUPREME wet, diaper crib, he was in the noticed her putting the child down was diaper. that change Defendant testified Bridges to the and he told rolling one up eyes her started picked legs, child’s when he the the child was told defendant that Bridges the and that side to other was of her sons told defendant that one having Bridges a seizure. knew what to do. Defendant testified with and that she born seizures eyes stopped rolling. her time, shook the child and Bridges that at this responded, child, defendant Bridges how shook the “[I]t When asked testified on cross- nothing.” hard or Defendant wasn’t real time, took child into the Bridges he and examination that lamp he they had and that noticed room and kitchen where a living bruises on the child. respond Bridges, Susie did not testified that when
Defendant hospital. that Defendant further testified Bridges left to call the her that minutes later and that he told some Bridges returned five They wiped a the child with grease. marks the child could be on off. that he cloth, and of the marks came Defendant testified some hospital, stopping gas for Bridges took the child to the then way. while he alone denied that the child cried was Defendant her night, her and he denied that he tried settle down with that that he beat her. evidence, testimony presented through the
Defendant also County Department worker, that Alamance of Social social neglect against Bridges (“DSS”) allegations had received Services regarding 1988 and her son regarding her son Scott on November cross-examination, February social worker Tony 1990. On on 19 report regarding Scott to be neglect testified that DSS found the unsubstantiated, the social worker testified on redirect were “no risk factors to the chil- “unsubstantiated” meant there worker also testified on cross- dren the house.” social Tony’scase, regard- evidence existed examination that insufficient open ing allegation file. her August she went to
Colene Faith Flores testified bitty baby.” little Bridges where she observed “a friend’s house baby propped on couch when she Flores testified that the constantly thirty-five approximately minutes. arrived cried baby Bridges walk over Flores testified that she then observed crazy.” “you’redriving tes- her, stating, me Flores further and “smack” baby tified that fell off the couch.
STATE BURR v. (1995)] N.C. 263 [341 rebuttal, ex-boyfriend, Whitlow,
On the State called Flores’ James testify. to he Whitlow testified that was with Flores at her friend’s anyone slap baby house and that at no time did he observe off the couch. Whitlow also testified that he lying had discovered Flores to previously. him
Jury Selection Issues
I. assignment error, In his first defendant contends that the trial [1 ] pretrial denying court erred in his prospective motion to examine jurors cause, thereby challenged for “issuing ruling pro a blanket hibiting Essentially, argues rehabilitation.” defendant that instead of exercising erroneously discretion, upon his the trial judge relied deny request ruling prospective jurors blanket to his to rehabilitate Barbee, Watkins, they challenged Torain after were for cause. We disagree.
We given have noted that while oppor- defendants can be tunity juror, to a entitlement; rehabilitate this is an judges not are required to a attempt jurors not allow defendant to to rehabilitate challenged for A trial may cause. court in its sound discretion request attempt a refuse defendant’s to to rehabilitate certain jurors challenged for cause the State. Skipper,
State (1994), cert.
denied, - U.S. -, (1995). 130 L. Ed. 2d present case,
In judge general the trial a ruling did enter that, law, as a matter of attempt defendant would not be allowed to to juror challenged Instead, rehabilitate for cause. record shows Judge denying Stanback exercised his discretion defendant’s general pretrial seeking attempt motion be to allowed to to rehabili- every prospective juror challenged tate for cause Judge State. Stanback then ruling spe- exercised discretion in on defendant’s requests cific attempt to be allowed to to rehabilitate individual jurors requests as these were made. Judge spe- Stanback based his rulings juror’s cific on the individual answers and demeanor. specifically
Judge acknowledged Stanback question that the attempt prospective whether to allow to to rehabilitate a juror presiding judge’s and, was within the discretion, in at least one instance, he attempt prospec- allowed defendant to to rehabilitate a juror. Thus, tive Judge properly we conclude that Stanback exercised COURT IN THE SUPREME v. BURR specific requests rehabilitate denying
his discretion challenged State them Watkins, and Torain after the jurors Barbee, penalty. unequivocal opposition the death their cause based on juror who has to rehabilitate is not allowed “The defendant response penalty opposition expressed unequivocal death *17 v. by prosecutor the trial court.” State questions propounded present 66, 298, 307, (1990). 389 71 In the Cummings, N.C. S.E.2d 326 expressed jurors unequivocally an prospective at issue case, three all Specifically, when asked inability to death. to sentence someone death, regardless of the against a sentence of he would vote whether that he prospective juror without reservation stated evidence, Barbee sen to return the death would; when asked whether she could vote tence, any circumstances, regardless judge’s of the set of under unequivocally law, juror prospective Watkins instructions on any not; was and when asked whether there answered that she could penalty, impose which he could the death of circumstances under set juror answered, “No,” regardless judge’s of the prospective Torain his Thus, judge the trial did not abuse discre instructions on law. request attempt rehabilitate these denying tion defendant’s id.; See State v. prospective jurors questioning. further accord 25, denied, - U.S. 159-60, 14, Green, 142, N.C. 443 S.E.2d cert. 336 assign first -, (1994). Accordingly, L. 2d 130 Ed. 547 ment of error is overruled.
II. [2] Next, defendant contends that the trial court erred excusing opposition juror Mary prospective Ervin for cause based her penalty. disagree. We death may prospective juror whether a determining
“The standard for
capital punishment is
properly
for his views on
be
excused
cause
substantially impair
per
‘prevent or
views would
whether those
juror
with
duties as a
in accordance
his instructions
formance
”
118,
Syriani,
350, 369,
428 S.E.2d
128
oath.’ State v.
333
and his
Wainwright
412, 424,
L.
2d
851-
Witt,
v.
469 U.S.
83 Ed.
(quoting
reh’g
denied, - U.S. -,
(1993),
L. Ed. 2d 341
(1985)), cert.
126
prospec
(1994). However, “a
denied, - U.S. -,
STATE v. BURR
denied,
(1990)) (alteration
496 U.S.
110L. Ed. 2d
original);
424-25, L.
Wainwright,
accord
The reveals that at the when asked whether she any penalty had feelings about death that would influence her as juror, juror prospective responded, “Yes, Ervin sir.” When asked opposed penalty, whether she again responded, to the death she “Yes, Then, sir.” when feelings asked whether her the death about penalty strong penalty were not so she could vote for the death circumstances, under responded, set of Ervin “I couldn’t.” Thereafter, Ervin stated that she could abide the law and that her prevent feelings following response would her the law. In question penalty of whether she could for the vote death under circumstances, depends. some stated, Yes, she “It in some.” questions aspects asking trial, After other regarding of the prosecutor explained procedure sentencing prospective then juror again questions Ervin concerning feelings asked her her penalty. prosecutor about the death asked Ervin if could rec- she *18 put ommend be jury to death if she were on the and the the aggravating outweighed determined that circumstances mitigating circumstances and that the aggravating circumstances sufficiently penalty. were substantial for to call the death Ervin responded, couldn’t, “I no.”
Prospective juror stated, however, Ervin later that she “could penalty],” vote for and, death when asked she would whether [the automatically against penalty, responded, vote death she “No.” Thereafter, automatically when asked whether she would vote for life, responded, death or Ervin “Automatic vote for life.” When told response implied automatically against that this that would she vote your penalty, asked, answer, the death Ervin was “Is that honest that you automatically penalty would and against vote for life the death your responded, because of views?” Ervin “Yes.” Ervin However, then responded negative question views on whether her penalty impair “substantially performing death would [her] [her] juror judge’s duties as a in accordance with the instructions and [her] juror.” prosecutor oath as a The then stated:
Well, you’ve say you lost me there. that vote for could [Y]ou you death, you automatically tell but then me would vote for life you say your you impair and then would not in . . . views ways. reaching I—it can’t all I that. be three need to know where COURT IN THE SUPREME you needs to know. Where do you thing. on this stand [c]ourt on this? stand responded, “I for the death
Prospective juror Ervin would vote yes.” recess. penalty, The court then called fifteen-minute transpired: reconvened, following After the court empha- ... I want right, Ervin, again All Ms. [Prosecutor]: any right It’s not that there’s answers something here. size yourself you just I be as honest wrong answers. want asking you be, and we I was can before broke with the as [c]ourt your you your death you feelings that had on views about your my very simply question this: Are penalty and is this: [I]t’s they impair penalty will substan- on the death such that views tially, you very on this case? make it difficult for to serve Yes, Ms. Ervin: it would be. you Okay. you ago little while told me [A] [Prosecutor]: you’ve automatically life come back and
would vote for and then you you you asking vote death. What I’m well, said think could for penalty it make [is,] your are such that would views on death you very you required if to follow the law it it difficult for you point impose penalty? where vote to the death come to that Yes, Ms. be. it would Ervin: lines, you for along saying And those are [Prosecutor]: automatically you you vote believe that would tend
that reason opposed to a death sentence? life sentence as Ms. Ervin: Yes. *19 — you if Even were otherwise satisfied? Is
[Prosecutor]: Ms. Ervin: Yes. juror for prosecutor prospective excuse Ervin then moved to presence prospective Following a outside the of
cause. discussion juror, the ruled: court in addi- has observed the demeanor the witness
The [c]ourt questions to that have been tion to her inconsistent answers challenge posed in its will allow the to her and discretion this witness. cause for THE
IN SUPREME COURT 285
STATE equivocal yet
responses
Ms.
conflicting
exemplify
Ervin’s
the sit
anticipated by
Supreme
uation
States
United
Court
Wainwright,
that,
where
Court
recognized
instances,
some
a
prospective juror’s
may
bias
provable
not be
with unmistakable clar
ity. Wainwright,
424,
Thus,
469 U.S.at
83 L. Ed. 2d at
we
852.
defer to
juror
the trial court’s judgment concerning
prospective
whether
Ervin
impartially.
would have been
to
law
Davis,
able
follow the
See
325
624,
N.C.
III. [3] Defendant also contends that the trial court erred in allowing prosecutor question prospective juror ability Fuller about overlook certain facts the case based on the argument that these questions juror. improperly “staked out” the We disagree. may pose hypothetical questions
Counsel which are designed prospective jurors to elicit what their decision might given questions improper be under state of Such are facts. they juror
because
pledge
tend
“stake out” a
him to
cause
presented.
himself to a decision in
advance of
evidence to be
Jones,
114, 134,
826,
State v.
N.C.
S.E.2d
(1994) (citing
339
451
835
Vinson,
326, 336,
60,
State v.
S.E.2d
(1975),
215
68
death sen
vacated,
902,
U.S.
(1976)),
tence
387, 404,
denied, - U.S. -,
cert.
(1992),
denied, - U.S. -,
Ed.
reh’g
L.
2d
123 L.
2d 503 (1993).
Ed.
“
Thus,
error,
order for the defendant
show
he
reversible
must
[i]n
preju
show that the trial
abused
court
its discretion and that he
thereby.” Jones,
diced
' juror prosecutor prospective present case, In the informed the may the died from tend to show that child Fuller that the evidence subjected prior abuse, some of abuse to her she had been form family of death, living the was in “the best environ- child not and Fuller if could prosecutor ment.” then asked he The child was beyond issue of what kind of environment this look the may she in, beyond look of the mother how living issue time, on for her children at concentrate caring have been defendant, Burr, did, Mr. on what, this concentrate anything, if killing guilty or not he is of this child? whether repeat prosecutor to objected, and the court asked the Defendant question question. prosecutor as follows: The restated environment, Notwithstanding the the evidence-—how the may living to show environment the child was evidence tend motherly all of fulfilling in whether not her mother was her or or you focus, you view, duties, can whether or not this can on killing defendant, Burr, guilty guilty Mr. is or not the child? objection, and Fuller Thereafter, the court overruled defendant’s “Yes, responded, sir.” prosecutor’s agree with that the
We do not
defendant’s assertion
attempt
rephrased question
impermissible
an
was
to stake out
prospective juror
rephrased question
did not contain
Fuller.
Further,
prosecutor’s
inadequate statements of law.
incorrect or
inquiry
prospective juror
impartially
into
could
focus
whether
innocence, regardless
guilt
the issue of defendant’s
child’s
motherly care,
impermissible
an
living
and lack of
was not
conditions
upon
attempt
prospective juror
this
would
a
to ascertain how
vote
Instead,
question
properly
given
of facts.
allowed
state
jury.
prosecutor’s right
secure an
See
exercise of the
unbiased
State
App. 287,
Williams,
(upholding
IV. [4] court In his next erred assignment allowing him to ask error, defendant contends that one prospective juror, “Do the trial you imprison- preference penalty opposed have death as to life for the *21 STATE v. BURR (1995)] [341 support
ment?” In contention, of his defendant cites to the holding in Morgan Illinois, 719, v. 504 U.S. 119L. (1992). Ed. 2d 492 Morgan,
In Supreme “the United States Court held that a defend ant potential must be allowed juror to ask a whether he would auto matically always or penalty vote for the death following a defendant’s capital conviction of a Miller, offense.” State 663, 681, 339 N.C. 455 137, 147, reh’g denied, S.E.2d 340 N.C. 458 S.E.2d (1995), petition cert. filed, - U.S.L.W. - (No. 95-5388, July 1995); Robinson, accord State v. 78, 100, 315-16 (1994), denied, - U.S. -, cert. 130L. Ed. (1995). 2d 650 As stated Supreme Court, a “entitled, upon defendant is request, inquiry jurors discerning who, prior those even to the State’s case-in- chief, predetermined had the terminating trial, issue of his being impose penalty.” whether to Morgan, the death 504 U.S. at L. Ed. 2d at 507. present case,
In the
the trial
objection
court sustained the State’s
question
to defendant’s
as to
Defendant was not barred from
form.
question
asking
form,
but
“may
instead was told that he
rephrase”
question,
properly
if
indicating
put,
per-
it would be
Skipper,
missible. See
337 N.C. at
Defendant,
V. [5] Defendant also contends that the trial court erred in failing to prospective juror instruct Stainback on meaning of a life sen disagree. tence. We
Counsel for the defense asked if Stainback he would be able to imprisonment consider life appropriate penalty as an for first-degree murder, replied, parole?” Stainback “Is that privilege without Counsel for the defense then stated: judge you will have to instruct regards [sic] imprisonment possibility
life imprisonment. or the life Whether you or not he not, mentioned that or would be able to follow the judge’s they apply instructions as . . . to this case? COURT THE SUPREME IN
STATE “Yes, asking a juror answered, sir.” After few Prospective Stainback accepted Stainback as a questions, for the defense more counsel defense not ask trial court instruct juror. Counsel for the did imprisonment. On jury panel meaning on the life Stainback however, failing the court erred argues, appeal, defendant impris- life jury panel, meaning on the Stainback, and instruct response. onment based on Stainback’s parole proper matter for eligibility for is not con
“Adefendant’s
*22
by
Campbell,
612, 632, 460 S.E.2d
jury.” State v.
sideration
a
denied, - U.S -,
(1996).
Guilt/Innocence VI. [6] Next, defendant contends that the trial court erred in admitting testimony by wife, Wade; Bridges; Wade’s Rita the Wades’ Lisa Donald Christy Misty Wade; Bridges’ regarding and Scott daughters, and son prior testimony Bridges. Lisa The defendant’s misconduct toward by occasions, witnesses tended to show that numerous given these Bridges’ to make bend hands behind her back her defendant would say wanted; occasion, on one defendant bent and do whatever he that attempt make her kiss Bridges’ wrist behind her back in an her pop through feet her that “could make that bone brother’s and told he skin”; up occasion, Bridges another defendant threw that on her neck in against her, leaving the wall and choked bruises on put shape fingerprints; gun and that hand and defendant if Bridges’ face threatened to kill her and man involved she were unfaithful to him. testimony “grabbed also statements that defendant included them”; that
[Bridges’] and mashed them till he bruised he breast[s] shape her these were in the of thumb and legs; bruised that bruises grab Bridges’ vagina, leaving defendant fingerprints; that would Bridges Scott bruises; defendant would tease and hit her. tes- kill Bridges him, if she left he would her. tified that defendant told STATE v. BURR Defendant also it trial argues that was error for the court to admit testimony by Qualls, mother, Officer Dan Bridges’ Bridges’ step- testimony corroborating Bridges’ sister regarding defendant’s misbe- by descriptions repeating given havior Bridges had to them. testimony Defendant contends all of the regarding prior 8C-1, misconduct was inadmissible under N.C.G.S. Rule § We 404(b). disagree. 404(b)
Rule “general is a rule of inclusion of relevant evidence of crimes, wrongs subject other a defendant, excep- or acts to but one requiring only probative tion its if its exclusion value is to show that propensity disposition the defendant has the or to commit an offense charged.” nature of Coffey, the crime State 278- S.E.2d (1990). Thus, may though even crimes, evidence tend to show other wrongs, propensity acts and his to commit them, it is Rule 404(b) long admissible under so as it also “is rel- purpose for evant some other than to show that defendant has propensity type for the of conduct which being he is tried.” *23 Bagley, 201, 206-07, 244,
State v. 321 N.C. 362 247 (1987) (quot S.E.2d ing Morgan, 626, 637, 84, State v. 315 N.C. 340 S.E.2d 91 (1986)), cert.
denied, 485 1036, U.S. L. Ed. 2d 912 (1988). 99 State prior contends the that evidence of defendant’s mis identity. was 404(b) prove
conduct admissible under Rule In to order prior for evidence of defendant’s crimes or bad acts to be admissible identity perpetrator charged show of the the crime under Rule “ 404(b), present there must unusual be ‘some facts both crimes or particularly person similar acts which would the indicate that same ” Riddick, 133, committed both.’ 127, 422, State v. 340 S.E.2d Moore, 106, (1986) (quoting 102, 542, 426 State v. 309 305 N.C. S.E.2d (1983)). “However, necessary is not it the similarities the unique between two situations ‘rise to the of the level and ” Stager, 278, 304, bizarre.’ State v. N.C. 406 S.E.2d 891 (1991) (quoting Green, 594, 604, State v. cert.
denied, “Rather, 488 U.S. 102 L. Ed. 2d (1988)). the similari simply support ties must tend a reasonable inference that the same person committed both the earlier and later Id. acts.” present case,
In the charged defendant was with the first-degree required prove and O’Daniel, murder Susie the State was the THE SUPREME COURT IN v. BURR death, At the identity perpetrator. the time her of the victim by upon Bridges with similar to those inflicted covered defendant, bruises body shape fingerprints on the including bruises Specifically, Dr. testified handprints on neck. Chancellor multiple the neck that were consistent she bruises on observed by consist- hand and bruises on cheek were marks caused a by fingers. marks ent with caused injuries addition, to show that the victim’s
In the evidence tended defendant committed were acts similar to those acts caused two- regarding Azizkhan the unusual against Bridges. Dr. testified neck centimeter-by-two-centimeter on the child’s as follows: bruise her, me I looked the two centimeter What disturbed when very mandible, edge of her that’s bruise that was underneath the except grabbed bruise, for a when someone is unusual location very tightly. side. It bruising
And that would match the other also being head grabbed also for the child around the could account and the neck. injuries
Dr. Azizkhan further testified that inflict require blow or kind of legs child’s “would either a severe direct some activity” “could snapping and that the fractures to the child’s arms torquing pulling intense arm and grabbing be from Similarly, Dr. frac- arms backwards.” Merten testified that the child’s produced by bending were forward legs tures in the child’s knees by “taking fractures were inflicted the arms and that the shoulder them back.” bending injuries we that the unusual inflicted on the
Because conclude particularly upon were similar to those inflicted victim acts would Bridges and because we conclude that unusual which injuries particularly those have the victim’s were similar to caused *24 against Bridges, acts we conclude that the evi- defendant committed prior Bridges his regarding defendant’s misconduct toward dence of her, fingers, bending her with hands and and her choking bruising his identity her was relevant and admissible to show arms behind back Carter, 569, 587-88, Rule State N.C. 451 404(b). under See v. 338 elderly 157, an (1994) (evidence S.E.2d 167 that defendant assaulted right eye piece man with a of block admissible above his cinder was identity first-degree occurring in murder of a woman to show years later of the death was blunt eight where one cause victim’s 291
STATE v. BURR by primary trauma to the head a brick caused and the wound was denied, - U.S. -, the right eye), above cert. 132 L. Ed. 2d 263 Phillips, see also (1995); 1, 14, 293, State v. 328 N.C. 399 S.E.2d 299 previously pole (evidence defendants had chained the victim to a in identity basement in was Chicago their admissible to show in the felony Carolina, child abuse victim in as of this North cir “[t]hese were cumstances similar to evidence that was tied victim] [the dog explained chain in Carolina North and the medical evi injury by dence that the serious ankles was caused [the victim’s] being tightly denied, 1208, their cert. L. bound”), 501 U.S. 115 Ed. 2d (1991). properly 977 Wealso conclude that the trial court allowed tes timony Bridges’ testimony corroborating concerning prior these Marlow, 285-86, See 275, assaults. State v.
282 (1993).
Further, the similarities between against' defendant’s assaults probative and the Bridges against assault the victim are highly on the identity. clearly issue was Defendant identified as the one who prior assaults, especially committed these light defendant’s own testimony regarding grab [Bridges’] the fact that he “would arm and bend it back” and bent her that he wrist back on one occasion and got “she on her she was going knees like to kiss feet.” [her brother’s] identity perpetrator The of the this case was critical issue at Thus, probative trial. we are that the value of satisfied defendant’s prior Bridges choking her, misconduct regarding bruising toward his fingers, bending her with hands and behind her arms her back any potential outweighs prejudice unfair against for defendant. See Carter, 338 N.C. at S.E.2d at 451 168.
Further, arguendo assuming that the admission of the other testi- mony, concerning Bridges infidelity threats to kill placing Bridges’ face, error, a gun defendant any we conclude that prejudicial. error was such “Defendant has burden under 15A-1443 for the demonstrating § N.C.G.S. that but erroneous possibility’ of this there is a evidence, admission ‘reasonable that the jury would guilty.” Gibson, have reached a verdict of not State v. 29, 44, grounds (1992),
N.C. S.E.2d overruled on other Lynch, (1993). State S.E.2d 349 State’s evi- night murder, tended to dence show that defendant was left young forty-five with the victim two of sons for Bridges’ alone minutes; left, appeared physically that before the child to be Bridges fine, body; with no marks on her while defendant was with the child, Bridges’ eight-year-old son, Scott, hammering was awakened
IN COURT THE SUPREME v. BURR N.C. “mumbling” and crying; that Scott heard defendant and the victim Bridges stopped crying; that after returned the victim then had a blow to trailer, was and suffered victim covered bruises the injuries. head; the child died from these the and that evidence, regarding the defendant’s This addition to evidence identity, competent to to prior acts was admissible show was that perpetrator murder, was of the support finding a that defendant the possibility but has failed a that for and defendant to show reasonable kill Bridges the of defendant’s threats to the admission of evidence jury have a gun her, his a the would reached different pointing and at Accordingly, regarding error the admission of defendant’s verdict. prejudi- her Bridges pointing gun was not threats kill is assignment of error overruled. cial. See id. Defendant’s sixth VII. [7] Defendant’s seventh assignment of error concerns the court’s prior regard of defendant’s miscon instruction with to the evidence requested Bridges. an “similar in duct toward Defendant instruction 104.15, form North Carolina Pattern Instruction —Criminal they not to as [jurors] inform that are consider such evidence evi the limiting purposes dence the character and the for [defendant's may properly jury the consider The trial followed the which it.” court jurors properly the the pattern instruction instructed evi prior Bridges dence “solely defendant’s misconduct towards admitted identity purpose showing person for the who committed,” case, in this if it was charged committed the crime they “may only it, purpose consider limited for which it (1984). was received.” See N.C.P.I.—Crim. 104.15 The trial court that the was not to con declined to include extra sentence sider the evidence as evidence of defendant’s bad character. jury’s properly
We court con- conclude the trial limited identity sideration of this evidence to the issue of and therefore that conformity trial was in substantial court’s instruction request. assignment is Defendant’s seventh of error over- Brown, ruled. See State S.E.2d consistently is (“[T]his Court held that trial court (1994) has required repeat requested, specific verbatim a instruction that is if supported evidence, but that it is sufficient correct and conformity with gives the in substantial court instruction request.”). COURT
IN THE SUPREME STATE BURE *26 (1995)] 263 N.C. [341 VIII. [8] Next, contends that the trial court erred excluding County from the Alamance records evidence contained one-year Department’s concerning the Department of Social Services family following the Bridges’ supervision investigation and of Lisa “contained that these records death. Defendant contends child’s relevant and Lisa” and was much information which incriminated impeach Bridges’ third-party guilt, as well as to to show admissible We wrong to her other children. testimony nothing had done that she disagree. other proffered to show that someone the evidence is
[W]here charged, admission of committed the crime than the defendant conjecture of mere must do more than create the evidence (1) must evidence in order to be relevant. Such guilt another’s person, (2) and be directly specific point guilt to the of some guilt. with the defendant’s inconsistent (1990). 712, 721, 392 S.E.2d 83 McNeill, v. 326 N.C.
State than that someone nothing show more “Evidence which tends to offense, opportunity to commit the accused had an other than the actually person did commit the that such tending without to show so, not do is too the defendant did and that therefore offense relevant and should be excluded.” remote to be (quot 550, 564, (1989) Brewer, 386 S.E.2d State 637, 641, (1979)), Britt, App. ing State v. (1990). L. Ed. 2d 541 denied, 495 U.S. cert. opened Bridges file on Lisa case, DSS a case present
In the 7A-544.The required § under N.C.G.S. of Susie as following the death counseling difficulty keeping Bridges reveal showed records children, taking her children and the appointments for herself work, at home with school-related dentist, helping her children returned children, being home when her children bathing her evidence, however, Bridges no school; the records contain violently Following toward these children. physically or acted abused the case concluded year supervision, the social worker for needs met” and recom- “having their minimal children were records, of the DSS thorough After a review closing the case. mended in the mur- guilt Bridges of Lisa pointing to the we find no evidence of the child. der IN THE COURT SUPREME impeach Bridges with evi-
Further, allowed to defendant was in the excluded DSS records to the evidence contained dence similar children, Bridges’ home and her regarding the lack of cleanliness of truancy problem children, fact that DSShad received with her sons, concerning two of her neglect against Bridges allegations psychiatric history and rela- opinion Bridges’ a social worker’s instability.” Thus, con- tionship “suggestf] the evidence men part, merely have, the most been tained in the DSS record would impeachment purposes cumulative, probative value for delay. substantially and undue outweighed danger of confusion assignment of 8C-1, (1992). eighth N.C.G.S. Rule 403 Defendant’s § *27 error is overruled.
IX. [9] Defendant also contends that the trial court erred by failing to thereby continuance, violating for a his constitu grant his motion and to the effective assistance of coun rights tional to confrontation disagree. sel. We deny
Traditionally,
grant
a continuance rests
the decision
Ungar Sarafite,
U.S.
within the discretion of the trial court.
v.
376
589,
921,
[, reh’g denied,
925, 12
575,
11 L. Ed. 2d
931
377 U.S.
Roper,
337, 348,
(1964);
L. Ed. 2d
State v.
328 N.C.
402 S.E.2d
217]
600, 606,
cert.
denied,
[502]
U.S.
[902],
State v. 334 N.C. 432 S.E.2d 336 rights “The defendant’s to the assistance of counsel and to con- guaranteed the Sixth and Fourteenth front witnesses are Amendments to the Constitution of the United States and sections I of the Constitution of North Carolina.” Id. “It is 19 and 23 of Article implicit an have a reasonable time guarantees in these accused Harris, prepare present and his defense.” State v. 290 investigate, “ Every 681, 687, 437, (1976). 440 defendant must ‘be 228 S.E.2d produce opportunity investigate time and and allowed a reasonable competent evidence, can, in if he defense of the crime with which he THE SUPREME COURT 295 IN
STATE v. BURR
”
testimony.’
his accusers with other
charged and to confront
stands
113,
426,
(1978) (quot-
Thomas,
105,
240 S.E.2d
v.
294 N.C.
State
Baldwin,
690, 698,
526,
(1970)).
S.E.2d
276 N.C.
ing State v.
preparation and
“However,
length
investigation,
set
of time for
no
required,
is denied due
presentation is
and whether
upon
circumstances of
process
be determined
the basis
must
at 440. “To establish a
Harris, 290 N.C. at
each case.”
violation,
must show that he did not have
a defendant
constitutional
prepare
ample
investigate,
and to
time to confer with counsel
In
Tanstall,
In the appointed trial counsel on 30 1977, was as defendant’s State since appointed Mr. attorney Jacobs was to assist August Robert Thompson represented defend- Thompson September 1991. Mr. on 5 1991; copied preliminary hearing on 6 November received ant at a attorney’s files, including statements investigative the district *28 Alamance victim’s medical records from the State’s witnesses and the Hospital; eighteen motions in County Hospital Memorial and filed and the action. 1992, Judge hearing Weeks held a on
On 14 December motions, and, hearing, defendant asked the pretrial at the end of court-appointed allegation based on his counsel court to remove they had not con- they with him and that had not communicated to his case. At this whom he considered essential tacted witnesses January 1993, Judge Weeks time, for 4 and the trial was scheduled request under advisement. took defendant’s again, Judge Weeks day, interviewing after defendant
The next counsel based Thompson Mr. and Mr. Jacobs as defendant’s removed appointed Collins and and Robert irreconcilable differences attorney then Hoy represent The district Douglas to defendant. be called for trial on 25 Mr. that the case would
informed Collins continued, and on 4 January moved that the trial be 1993. Mr. Collins January heard this motion and continued 1993, Judge Stanback Hoy February 1993, Mr. and Mr. Collins until 1 March 1993. On case STATE BURR thirty days, filed another motion to continue the trial for which Judge motion Stanbaclc denied on 1 March 1993. appeal, argues
On defendant that various “unanswered medical questions imply strongly required expert that defendant a medical to preparation assist of his defense” and that “he sought part expert, a continuance in to evaluate his need for an identify expert, necessary a suitable and to file the motions to obtain funds.” argues Defendant also that because he did not receive the timely regarding Bridges manner, DSS records Lisa in a he did not adequate have time to interview witnesses contained in these records in order to investigate third-party guilt. the issue of Based on these arguments, defendant contends the trial court in failing grant erred his motion for a disagree. continuance. We
By attorney letter dated 30 December the district informed Hoy Mr. complete Collins and Mr. that the containing file inves- tigative report and medical them, was available to as it had been Thompson made available Mr. and Mr.Jacobs. Among things, other investigative report by this file included the department the sheriffs laying out the investigation and the interviewed, witnesses who were County names addresses of the doctors involved at Alamance Hospital Hospital, and Memorial and the victim’s medical records hospitals. attorney from both The district also informed Mr. Collins Hoy rays Mr. hospitals about X taken at both and about whom to rays. Additionally, contact order to observe these X letter, in this attorney the district Hoy pho- informed Mr. Collins and Mr. about tographs that were taken the medical examiner and advised them requested that he had bring doctors to locate and to the court draw- ings, charts, portions body and models of relevant of the in which injuries testimony. were found to Thus, illustrate their defense coun- sel had access to the medical containing necessary evidence evi- they required dence regarding expert the need for an for two months prior trial, having observed the evidence and medical testi- mony trial, ample opportunity defendant has had to show how his prepared case would have been better regard to this evidence *29 had the continuance granted, materially been or to show that he was prejudiced. He has failed to do so.
Further, report Bridges the DSS was referenced in the inves- tigative report by department the sheriff’s as well as in the medical Hospital, records Memorial both of which were contained in the prior file January made available to defense counsel to 1993.Counsel 297 COURT IN THE SUPREME STATE report at this requested full from DSS could have for the defense evi- previously, the file did not contain event, In as we held time. Thus, has also failed to third-party guilt. relevant to dence prepared regard with to this have been better his case would show materially or that he was granted been evidence had the continuance assignment of error is overruled. prejudiced. Defendant’s ninth
X. instruct the [10] Next, defendant contends defendant did not that the trial court attempt to flee the scene erred in failing may determining whether nonflight be considered that evidence of showing or a indicate innocence combined circumstances nonguilt. disagree. We not, in a criminal case is that the defendant general
“The rule is prove that innocence, allowed to purpose showing his for the jail escape from arrest or to flight take to before his he refused to so, opportunity to do arrest, though after his even offered attempted any testimony he had least in the absence of escape.” 2d, 334, Evidence 287. Refusal § 29 Am. Jur. flee voluntary escape; surrender. flee or 288, (1977), App. 594, 596, S.E.2d 290 Thomas, 34 N.C.
State v. denied, 439 U.S. denied, cert. .445, cert. 294 N.C. refusal to evidence of defendant’s (1978). Admitting L. Ed. 2d 318 “ prisoners to make permitting ‘would be prove his innocence
flee to ” Wilcox, subsequent acts.’ State v. their evidence for themselves Taylor, (quoting State v. 1120, 1136, (1903) 44 S.E. Thus, that the trial (1868)). we conclude (Phil. Law) non- jury on evidence of failing to instruct the did not err court is assignment of error tenth flight. Accordingly, defendant’s. overruled.
XI. [11] objection Defendant next contends that the prosecutor’s closing argument trial court erred concerning by overruling Hospital, to tes Memorial Todd, worker with of Nita a social failure testify for the Todd intended to have Ms. tify. counsel had Defense death, including her child’s investigation of the regarding her defense apparent mis of an Because Bridges and defendant. interviews day she was out of town communication, however, Ms. Todd was allowed motion, the trial court testify. Upon *30 THE SUPREME COURT IN 298
STATE v. BURR (1996)] N.C. 263 [341 Thereafter, in his report into evidence. Ms. Todd’s defense to read prosecutor stated: closing argument, the try hope case, I that I don’t
By gentlemen, ladies and gum, my murder, I don’t talk to wit- as particularly one as serious crime, you, any you become the victims of if ever nesses and you you do, I think hope you don’t, but if ever which I attorney would talk hope prosecuting other that I or some would your your taking case into the you to witnesses before to working an anything do less would be courtroom, because to injustice the victims. to your have witness in the got arrangements to make
You’ve courtroom sometimes. testimony you will, please,
Now, that, if to the I’ll contrast me, testimony, record of Nita Todd Todd, Nita excuse you. which was read Objection.
[Defense Counsel]:
The Court: Overruled. prosecutor was well aware that argues that because Defendant “[t]he diligent arrange efforts to for Ms. Todd to defense counsel had made prosecutor’s present testify,” argument bad-faith be professionalism. competence and Our attack on defense counsel’s entirety shows, however, prosecutor’s argument in its review of the counsel, an attack on defense but rather that this statement was not attempt evidence contained in the an to minimize the effect of the may report, which evidence have contradicted the tes- social worker’s timony by the State’s witnesses. jury arguments
Trial
are allowed wide latitude in
and are
counsel
presented
permitted
on the evidence
as well
argue
the facts based
Morston,
drawn therefrom. State v.
as reasonable inferences to be
“
Further,
‘prosecutorial
381, 405,
1,
(1994).
14
336 N.C.
445 S.E.2d
placed
appeal. Fair con
are not
in an isolated vacuum on
statements
in which the remarks were
given
sideration must be
to the context
they
factual circumstances to which
made and to the overall
”
131,
Abraham,
315, 358,
S.E.2d
referred.’ State v.
338 N.C.
1,
203, 221,
Pinch,
292 S.E.2d
(1994) (quoting State
reh’g denied, 459
denied,
(1982),
U.S.
Viewed in
we
Certainly any
allowing
this
present
error.
error
in the
case was
prejudicial error that would
to the level of
argument does not rise
(for
at 40
an
Green,
N.C. at
require a new trial. See
justify
trial, the com-
prosecutorial comment to
a new
inappropriate
“
as to make the
the trial with unfairness
ment must have ‘so infected
process’ ”) (quoting Darden
a denial of due
resulting conviction
144, 157,reh’g denied, 478
168, 181, L. Ed. 2d
Wainwright, 477 U.S.
assignment
Defendant’s eleventh
(1986)).
of error is overruled.
XII. trial court erred [12] By his twelfth by failing to intervene ex assignment of error, mero motu to contends that prevent the during his clos law on two occasions prosecutor misstating from prosecutor when the The first occasion occurred ing argument. arms, hits, who malice, bends who
stated, “Now,who acts with who contends There he sits.” Defendant chokes, who acts with malice? erroneously prosecutor argued to statement, the this identity perpetrator of they as the jurors infer defendant’s could however, conclude, character. We murder from his malicious referring was case, prosecutor’s argument facts of this under the prior acts to show jury considering evidence of defendant’s in sec holding Based on our identity perpetrator of the murder. as the properly evidence of opinion, jury could consider VI tion of this trial court did identity, and the prior acts on the issue of prevent the motu to therefore, failing to intervene ex mero not, err argument. prosecutor making
[13] The second occasion occurred when prosecutor stated: deliberation, you may con- premeditation and Considering Susie O’Daniel provocation part of the deceased. one, on the sider provoked the defendant unless baby, not have was a she could adequate it, like but that’s maybe crying and he didn’t she provocation. passion. mean an absence blood does not
Cool state of adequate provocation. For an to is the lack of What is referred STATE instance, you give example. I’ll an go I over there and I smack Ms. Rodriquez, pulls the clerk of court. She out a six shooter and plugs me.
Well,my smacking adequate provocation her is not for her to kill Although may me. well to, she want might ought to, well she but gentlemen ladies and law, it’s not adequate under the provocation. does,
But what it it reduces the crime from degree first mur- der degree to second murder because killing her me is in the heat passion of the adequate aroused sudden provocation. My adequate smacking her is to reduce it from first to degree second murder. We don’t have that situation in this case.
Defendant argues “adequate that provocation” because reduces mur- prosecutor’s der to manslaughter, the statement that defendant “adequate needed to provocation” show negate order to delibera- tion was an incorrect prevented statement of the law jury which the properly considering the verdict of second-degree murder. We disagree. provocation
There are two kinds of relating to the law of provocation homicide: One is that level of negates which malice voluntary reduces murder to manslaughter. words, Mere however abusive or insulting provocation are not sufficient to negate malice and reduce the manslaughter. homicide to Rather, provocation this level of ordinarily must amount to an assault or threatened assault against the victim perpetrator. provocation The other kind of is which, while insuffi- cient to reduce murder manslaughter, to is sufficient to incite suddenly defendant to act and without Thus, deliberation. words or conduct amounting to an assault or threatened assault, may enough be to arouse a passion sudden and sufficient in the perpetrator negate deliberation and reduce a homicide to mur- der in the degree. second Watson,
State v.
168, 176-77,
338 N.C.
449
694,
S.E.2d
(cita
699-700
tions omitted),
denied,
reconsideration
523,
IN THE SUPREME N.C. XIII. sion [14] Defendant’s thirteenth testimony Bridges’ assignment of error concerns son John, Jr. (“J.J.”) was scared of admis this evi a motion in limine to exclude defendant. Defendant filed motion, dence, reserving denied defendant’s and the trial court objections when, if, the specific State right to address defendant’s except trial did not court’s offered such evidence. Defendant ruling. you your trial, “Did notice how Bridges,
At State asked Lisa Bridges responded, “Well,the behaved around children [defendant]?” really say him, J.J., but ones, they nothing about he other wouldn’t objected to this testi- Defendant neither was scared of [defendant].” failed, has mony Bridges’ nor to strike answer. Defendant moved appellate Thus, therefore, review of this issue. preserve right only plain error rule. reviewable under the assignment of error is 179-80, 819, (1995). “In Rush, 174, 456 S.E.2d 822-23 State v. prevail plain analysis, defendant must first estab- under error order and then show that ‘absent that the trial court committed error lish ” probably error, would have reached a different result.’ Jordan, 333 N.C. (quoting State v. Id. at 456 S.E.2d (1993)). testimony admission of this Defendant has failed to show error, and admissible to demon- plain as it was relevant constituted period preced- relationship in the brief of the familial strate state *33 in the home. See State v. in which defendant resided ing the murder 415, 581, Defendant also Lynch, 424, (1994). 337 445 S.E.2d 585 N.C. testimony Misty Wade and social worker however, that the argues, also inadmissi- J.J. was scared of defendant was Brownlee Cable that however, testify was of Misty not, that J.J. scared Wade did ble. Misty what had Instead, the asked she observed State defendant. around, was of when defendant Bridges’ the behavior children
about
they
they
objection,
behavior,
Misty testified, over
“Their
had—
opinion
around.” This
testi-
act
kids when
was
didn’t
like
[defendant]
help-
rationally
perception and
mony
the
was
was
based on
witness’
children,
relationship
Bridges’
had with
one
show
defendant
ful to
the
testimony was,
Admission of this
whom
the murder victim.
was
526, 555,
N.C.
451 S.E.2d
therefore,
Baker,
v.
338
not error. See State
testimony by lay
admissible as an
witness
(1994) (opinion
591
help-
rationally
perception of the witness and
based on the
inference
object
to
issue).
Defendant failed
a fact
ful to the determination of
testimony by Misty
remaining
to
regarding
the
was admitted
the
Bridges’ children,
behavior of
and defendant has failed to show that
testimony
plain
of this
error.
admission
amounts to
Finally,
testily
worker
Cable
defendant called social
Brownlee
investigation
murder, including
about her
of the
her interviews with
Bridges
cross-examination,
defendant. On
State
asked Cable
Bridges
during
if
her
her interview “that
kids were frightened
told
objection,
responded,
Over
Cable
“At that time she
[defendant].”
told me
that J.J.
scared of
This evidence was admis-
[defendant].”
prior testimony
Bridges. Marlow,
sible to corroborate the
See
285-86,
assignment
N.C. at
XIV.
Next, defendant
denying
contends that
trial court erred in
motion to order that Lisa
medical
be
Bridges’
records made available
failed,
however,
the defense. Defendant has
make
these docu-
part
appeal.
ments
of the record on
It is
incumbent
defendant to
provide
complete
appellate
a
record for
review. Because defendant
failed
record,
to include these documents
we cannot review
assignment
of error.
[15]
“[T]here
is no statute
grants
a criminal trial
right
they
access as of
pos
documents unless
are ‘within ”
custody,
session,
Newell,
control of the State.’
v.
State
82 N.C.
App. 707, 708,
160 (1986)
(quoting N.C.G.S.
present
In
15A-903(d)).
case,
§
the documents at issue were not in
possession, custody,
Thus,
proper
or control of the State.
obtaining
method for
through
these records would have been
the use
subpoena
of a
duces
Love,
App. 226,
tecum. See State v.
(1990),
S.E.2d 429
denied,
dismissal allowed and disc. rev.
328 N.C.
(1991).
S.E.2d 37 subpoena purpose require duces tecum is to production specific patently inquiry. items to the material Id. COURT
IN THE SUPREME precision as fair and fea- specify with as much Therefore, must it Id. particular items desired. sible the S.E.2d at 160.
Newell, App. at
issue. [16] Defendant Instead, he made a in the present general case motion for the did not subpoena the records court to order five health physicians, psychologists, “any all specified and and entities psycholog medical or person providing providers and other care records available make all such [Bridges to Lisa ical care to] argument copying.” Defendant’s inspection and/or for [defendant psychological medical and Bridges’ all of was entitled to that he depres from that she suffered DSSfiles revealed records because the might files reveal psychological her medical and sion and therefore we unpersuasive. As her children is abusive toward that she became no evi opinion, DSS records contain in section VIII of held violently toward her physically abused or acted Bridges dence that request Bridges’ all of medical general Thus, defendant’s children. a fish nothing more than could amount to psychological records assignment fourteenth expedition. Accordingly,
ing is overruled. error Proceeding
Capital Sentencing XV. that the trial court [17] Regarding erred in sentencing failing to conduct an proceeding, inquiry first contends of the juror between a seated communication panel alleged about an proceeding deliberations. jury’s penalty during the pastoral counselor case, disagree. we specific facts of this Based on the duty juror of the trial it is the contact with a event of some “Inthe in substantial contact resulted whether such judge to determine within the discretion It is irreparable prejudice to the defendant. Willis, 332 N.C. inquiry to make.” State what judge trial as to (1992).
151, 173, 420 S.E.2d hear- an in camera case, court conducted present the trial In the juror alleged Hemrick, regarding the attorney, Mr. ing with a local during the the court Hemrick informed Mr. communication. case, a call he received of this penalty proceeding deliberation spoken to a he had Care and that as Pastoral known organization an told Mr. Hemrick psychologist there. apparently was a person who ask he wanted to him that psychologist told alleged court that this *35 IN THE SUPREME COURT STATE BURR (1995)] N.C. 263 [341 “hypothetical question him a about a trial question situation.” The “may juror juror who has assented ato verdict who is still a in . change they’ve the case . . their verdict after rendered a [sic] [sic] only verdict.” Mr.Hemrick informed the caller that the thing he knew about the law in North Carolina was “that a verdict cannot be assailed after Mr. caller, verdict.” Hemrick also however, informed the it[‘]s question that if hypothetical, were not if he had a client who was sitting panel on a changed who had mind, his or her then person questions should address their bench, to the trial question
should have a written bench, addressed to the trial foreman, all, juror should inform the first of that the wants to have a conference or a written communication with the trial judge.
Mr. Hemrick further informed the court that the caller did not indi- city cate in what “hypothetical” state or located, trial was if in hypothetical. fact the trial was not
We conclude that the trial court did not abuse its discretion in failing inquiry jury to conduct an of the regarding this communica- properly tion. The trial court conducted an interview with Mr. Hemrick, nothing in any juror this interview revealed miscon- presented duct. The caller hypothetical scenario and did not indicate being held, where the trial was if indeed it was not a hypothetical, nor did the caller indicate particular the name of the juror. Further, properly Mr.Hemrick informed the caller of the law in juror may North Carolina impeach that “a the verdict of the after it has open been rendered and court,” received in State v. Martin, 667, 685, 315 N.C. 326, 340 S.E.2d (1986), and instructed juror him to tell the questions to address his judge, trial if the scenario was real. Under circumstances, these say we cannot that this anonymous phone hypothetical call and juror scenario evinced con- present tact case which irreparable resulted substantial and prejudice to require defendant so as to the court to conduct an inquiry jury panel. of the Accordingly, defendant’s assign- fifteenth ment of error is overruled.
XVI.
[18]
By his
next
assignment
error,
defendant contends that he is
entitled to a new sentencing proceeding
prosecutor
because the
improperly referred to this Court’s
Huff,
decisions in State v.
325 N.C.
1, (1989),
grounds,
sentence vacated on other
497 U.S.
remand,
L.
(1990),
111 Ed. 2d 777
328 N.C.
402 S.E.2d
577 (1991),
Huffstetler,
and State v.
Defendant refers to the statements the case, v. Huff, State involving this is case the killing anof Supreme infant. North Carolina wrote, Court “a finding circumstance, that this aggravating especially heinous, atrocious cruel, only permissible exists and brutality is if level the normally involved exceeds that in degree found first murder or when degree question conscienceless, the first in piti- murder is unnecessarily less or torturous to victim.” the write, The Court went on to killing the of the was infant con- scienceless, unnecessarily pitiless, and torturous to the victim when the facts tend to killing establish that the or the when facts pitiless. tend to establish killing the was both conscienceless and by And finally, Supreme then another case the North Carolina case, [sic], Court and this is State v. the Court [a] Hufstettler writes, especially heinous, “we decline limit the definition of only atrocious or cruel murder to include those which involve physical injury prior or torture to death.” opinion
What the is saying Court its is that we decline to especially heinous, limit the definition of atrocious or cruel mur- only physical injury der include those which involve or torture prior words, you to death. In other saying Court is don’t have injury first, to decide which in determining was whether this was especially heinous, atrocious or cruel killing. That is issue. write, upheld goes
The Court we have submission of aggravating though even circumstance the evidence did not COURT THE SUPREME IN victim’s death point during a brutal at what establish attack[] occurred. or unconsciousness Supreme has answered Court the North Carolina
So injury, the middle you. if first question It doesn’t matter to lose con- injury which caused her injury was one last sciousness, deciding if the circumstance that is not an issue exists. presented say, hold the evidence went on to we
The Court permit present would cases for submission the State victim, was whose name the murder of consider whether especially heinous, or cruel. Powell, atrocious Edna battered to death being died as a result of “Edna Powell blows, only prolonged series of blows what have been could skull, neck, *37 skillet, so severe as fracture her from a cast iron jaws and collarbone. [“] pushed into her brain. it caused her skull to be
“And brutality inflicted severity of the numerous wounds and the amply justified aggravating this circumstance the submission of jury.” important impor- It’s an gentlemen, that’s an case.
Ladies and you. Why say is I in the one that before do tant case the context of that? appropriate determining it. In the sentence
Let’s think about may only you you rely will the evidence Judge the tell [on] you hearing, that were sentencing heard in this the witnesses you you may rely all yesterday, but on the evidence which called you may yesterday’s at sen- previously have heard. And as recall rely that we would tencing hearing I announced at the outset previous presentation upon of evidence. Huff, cases, with Mr. infant who dealing the one
Both died, present . . infants. Both . case involved the death of and killings which demonstrated a lack of con- cases involved the just pitiless that I read to science, a crime. Likewise that last case pity, you case, lack lack of demonstrates for [sic] Huffstetler conscience. present dealing in case we’re
In all those cases and certainly injuries injuries. multiple .... multiple Susie had 307 v. argues statements, prosecutor Defendant these encouraged jury especially heinous, atrocious, to find the or cruel aggravating juries circumstance on fact based that other had factually in found this circumstance similar and cases because this favorably. doing, Court reviewed those decisions In so defendant con- prosecutor prohibition tends that the violated the in enunciated State Gardner, 605, 611, 872, 316 N.C. (1986), 342 S.E.2d 876 that “coun- may sel published opinion not read the together facts contained imply with the result to that the case should return favor- able verdict for his client.” is, however, “permissible
It in argument counsel to state his applicable view trial, published of the law to the case on to read deci support thereof, sions of this Court in recount some of the Laws, facts on which those other decisions were based.” State v. 325 81, 115-16, N.C. 381 609, (1989) S.E.2d 630 (citing Wilcox v. Motors Co., 473, 479, 76, 269 N.C. (1967)), 153 S.E.2d 81 sentence vacated on grounds, 1022, other 494 U.S. L. 2d (1990), remand, 108 Ed. 550, L. denied, cert. U.S. 116 Ed. 2d
174, reh’g denied, 502 U.S. 116 L. 2d (1991). Assuming Ed. arguendo prosecutor’s unobjected-to reading argument regard grossly were so Huffstetler Huff improper require motu, as to the trial court to intervene ex mero we nevertheless conclude that defendant has failed to show resulting prejudice in light overwhelming evidence this aggravating Laws, circumstance introduced at trial. See
S.E.2d at 630. *38 [especially] ‘heinous, atrocious,
“Amurder is
or cruel’ when it is
pitiless
unnecessarily
a ‘conscienceless or
crime which is
torturous to
”Rouse,
97,
(quoting
the victim.’
In the the murder victim was a defenseless four- baby left in month-old who was the care of defendant at the time of approx- the living murder. Defendant had been in the child’shome for imately relationship mother, half of the life in a child’s with the child’s COURT IN THE SUPREME by permission to testimony Bridges given she had defendant
and parental he had taken on a discipline tends to show that her children child family. Thus, murder of this defenseless in the defendant’s role betrayed special which only pitiless, it the role but also was not family. in given had been the injuries inflicted supports finding that the The evidence also beyond what would neces- upon numerous, going be the child were The medical evidence and sary victim, to kill the brutal. body, testimony all over her that the child suffered bruises showed neck, grabbed had been including on her which indicated she bruises neck, arms, ears, torso, “very and bruises on her tightly” around the broken, legs were which legs. and injuries Both of the child’s arms and required a to inflict. The great have amount of force would by grabbing of in have been caused “intense breaks her arms could backwards,” child’s arms and the torquing pulling the arm and by legs produced hyperextending were the knees “with breaks her significant] force.” violence [and] skull,
Further, from a fracture to the which the child suffered by object “quite a blunt to indicated that force delivered some [was] injuries and head,” well as multifocal intercranial side of the as [the] eyes, bleeding which would have been caused behind both repeated child, shaking and which resulted the child’s “brain essentially “pounded against skull” and [being] inside slosh[ed] The evidence also showed that the child suf- bones of skull.” injuries prolonged period time, as the breaks in her fered over legs days old, nine have been con- eight were that she would following from an or so” the infliction of scious “minutes to hour pain. injuries, experienced during which time she would have severe especially overwhelming killing In evidence that the was light heinous, atrocious, cruel, we failed to conclude that defendant has any prejudice resulting error the trial court fail- show prevent prosecutor’s argument. ing to intervene ex mero motu to Furthermore, subsequently jurors trial court instructed the duty presented it their decide from all evidence that was existed, closing argument, and in his aggravating circumstance argue the facts in defense counsel also allowed to Huff argued: advantage. Defense counsel you Finally, prosecutor] about the case State v. talked [the *39 you piti- child, parts about the and read mentions Huff less, nature what Mr. Huff did to the child. conscienceless neglected you He to mention to what Mr. Huff do to did this baby child was to take his nine-month-old out into the woods and deep dig put baby a hole in about two feet the hole and slowly up very her Again, covered while she was alive. that was a you cold-blooded, conscienceless, I hideous act. submit to that’s not an act that we have in this situation. assignment
Defendant’s sixteenth of error is overruled.
XVII. [19] In his next assignment of error with regard to the prosecutor’s sentencing argument, defendant contends that trial court erred allowing prosecutor, state, objection, over defendant’s “I don’t done, injuries ears,] know when that was to the victim’s Ibut [the you injuries probably prior would submit to done to the [the were] time before the final blow that struck to her head.” Defendant [sic] statement, prosecutor contends that this was allowed to improperly postulate travel outside the record and the order injuries upon which certain were inflicted the victim. Defendant argues prejudiced that this error him increasing the likelihood that especially heinous, atrocious, would find the or cruel aggra vating overwhelming circumstance. Based on the amount of evidence killing especially atrocious, heinous, cruel, assuming was or arguendo error, any the admission of statement was such error necessarily beyond was harmless reasonable doubt. Defendant’s assignment seventeenth of error is overruled.
XVIII. [20] In his next assignment error, defendant contends that the trial proof finding court’s instruction on the mitigating burden cir cumstances, object, plain to which defendant failed to constituted However, given error. the instruction in this case is the same instruc tion we held did plain Payne, not constitute error in State v.
505, 531-32, (1994), denied, - U.S. -, 108-09 cert. Further, 2d (1995). arguments support
131L. Ed. rejected assignment arguments of error are in Payne. the same we eighteenth assignment
Defendant’s of error is overruled.
XIX. Next, trial defendant contends court’s instruction [21 ] regard aggravating circumstance, especially heinous, atro cious, unconstitutionally cruel, vague. Because defendant *40 COURT IN THE SUPREME
STATE (1995)] [341 only plain if object instruction, he entitled to relief failed to this is to 530, 107. Id. at S.E.2d at error occurred. by requested defendant, aggra-
Except for a sentence “[t]his during the commission is limited to acts done vating circumstance by present in the murder,” given the trial court the instruction the upheld providing we “constitu- the as case is identical to instruction 391-92, jury” Syriani, tionally to 333 N.C. guidance the sufficient presented rea- 140-41, this Court no 428 S.E.2d at and defendant has holding. Accordingly, nineteenth to our son reexamine is assignment of error overruled.
XX. error, defendant contends that the assignment In his twentieth prevent prosecutor misstating failing court erred to the trial closing argument. Defendant first during law two occasions the on opin- prosecutor’s this argument set out section XVIof refers to the section, any error was holding in that we conclude ion. Based our prejudicial. not
ing the [22] prosecutor’s explanation of second argument to which defendant refers occurred Issue Three of the capital sen dur prosecutor argued: procedure. The tencing issue, mitigating the circumstances insuffi- The third is—are outweigh aggravating to the circumstances? cient not mitigat- make a determination whether or these Youmust beyond doubt, are insufficient to ing circumstances a reasonable your outweigh aggravating Again, finding as this circumstance. you this, mitigating outweigh if find that the are sufficient unanimous, you your finding must be all twelve of aggravating, agree it. must he prosecutor misstated the law when argues
Defendant jury determining unanimous in that the that it had be informed outweighed aggravating circumstances mitigating circumstances prosecutor answer “No” to Issue Three. What the before it could essence, outweigh is if argued, mitigators did unanimity. required answer On other aggravators, then “Yes” hand, outweigh aggravators, then a “No” mitigators if the did unanimity. required to Issue Three answer v. BURR McCarver, For the reasons set forth in State v. 341 N.C. McLaughlin, (1995),
S.E.2d 25
and State v.
XXI.
[23]
Relying
on
Skipper
v. South
Carolina,
288,
(1994),
denied, - U.S. -, - L.
In
we concluded that
does not
precedents
jurors
holding
Court to overrule its
are allowed to
reject any nonstatutory mitigating
they
circumstance which
do not
mitigating
Basden,
304,
deem to have
value.”
Preservation Issues he concedes have Defendant raises four additional issues which recently position by against (1) this Court: been decided defendant’s prohibit denying motion to the the trial court erred defendant’s death-qualifying jury; (2) from the the trial court erred in State jurors they nonstatutory instructing the must consider whether the mitigating value; (3) circumstances have the trial court mitigating jury Four, juror instructing erred in the that at Issues Three and each “may” any mitigating than “must” consider circumstance found rather juror Two; (4) instructing in Issue the court erred in trial “yes” jury Three if it found that the that it should answer Issue outweigh aggravat- mitigating circumstances were insufficient ing circumstance. THE SUPREME COURT IN v. BURR issues, arguments on these
We have considered depart prior holdings. from compelling reason to our we find no of error are overruled. assignments These
preservation portion
[24]
Defendant also asserts
his brief.
two other
First,
defendant asserts
assignments
that the trial
error
in the
during
prevent
prosecutor
arguing
from
failing
court erred
jury was the conscience Alamance
penalty proceeding that the
it
County.
prosecutor merely reminded the
that was
community.
holding
on
in State
Based
our
voice and conscience of
Artis,
470,
(1989),
N.C.
499-500
sentence
(1990),
grounds, 494
108L. Ed. 2d 604
on other
U.S.
vacated
remand,
improper
that “it is not
(1991),
trial court erred [25] Defendant also failing asserts prevent under this prosecutor assignment error arguing dur *42 penalty no to the number of ing proceeding the that is limit “[t]here nonstatutory . mitigating . . circumstances that could be submitted.” 371, Harris, 129, 148-49, (1994), v. N.C. 449 S.E.2d In State 338 379 2d denied, - U.S. -, (1995), 131 L. Ed. 752 we held that cert. prosecutor’s in argument “that he was limited the circumstances imposition penalty, justifying he of the death which could submit except imagination while was no limit that of their own as there attorney[s] mitigation could in of his what the defendant’s submit improper punishment. grossly . . was so that the conviction was process.” Harris, in we holding of Based on our overrule denial due assignment of error. penalty pro Finally, contends the North Carolina death uphold prior rulings is We on cedure unconstitutional. continue to our Payne, error. N.C. at assignment this issue and overrule this of 337 306, 535, 111; Barfield, 448 at 298 N.C. 259 S.E.2d S.E.2d see State 907, 1137,reh’g denied, 2d denied, 448 U.S. 65 L. Ed. (1979), 510 cert. 918, (1980). L. 1181 448 U.S. 65 Ed. 2d
Proportionality Review tencing proceeding were [26] Having concluded that defendant’s trial and free prejudicial error, separate we turn to the capital sen by exclusively 15A-2000(d)(2) N.C.G.S. § duties reserved record, capital thoroughly Wehave examined the tran Court cases. scripts, present record and briefs in the case and conclude 313
STATE fully supports the aggravating by jury, circumstance found killing especially heinous, atrocious, cruel, or N.C.G.S. Further, (Supp. 1994). § 15A-2000(e)(9) we find no indication that the imposed of passion, preju- sentence death was under the influence of dice, arbitrary other consideration. We must then turn to our statutory duty proportionality final review.
“Proportionality
designed
possibility
review is
‘eliminate
person
that a
will be sentenced to die
action of an
aberrant
”
jury.’ Miller,
692,
339
N.C.
Holden, 125, 321 164-65, 513, N.C. S.E.2d (1987), denied, 537 cert. 1061, L. conducting U.S. 100 Ed. 2d In (1988)). proportional
ity review, pres we determine whether “the sentence of death in the disproportionate ent case is penalty excessive or imposed cases, considering similar both the crime and the defendant.” State v. Williams, 47, 79, 335, 355, denied, 301 S.E.2d cert. 464 U.S.
865, 177, reh’g L. 2d denied, 1004, 78 Ed. L. U.S. 78 Ed. 2d 704 (1983); accord 15A-2000(d)(2). § N.C.G.S. We cannot conclude based imposition on the penalty record that the of the death this case is capricious. aberrant or
This
distinguishable
case is
from those cases in which this Court
penalty disproportionate.
has found the death
cases,
In three of those
Benson,
517;
323 N.C.
372 S.E.2d
Stokes,
State v.
In State v.
316
(1986),
N.C.
314
v.
N.C.
[263]
(1985),
S.E.2d 181
the two
Young,
N.C.
325
In
v.
State
pecuniary gain and committed
found were
aggravating circumstances
robbery.
dispro-
finding
a
In
the death sentence
in
commission of
the
finding
was
the fact that there
no
portionate, this
focused on
Court
including
a course of conduct
other
engaged
was
in
that defendant
especially heinous, atrocious, or cruel.
that was
violent crimes or
it
because,
Young
among
distinguishable from
other
present case is
The
jury
aggravating
the
that
in
case the
found
circumstance
things,
atrocious,
especially heinous,
it
or cruel.
was
(1984), police
a
offi-
Hill, 311 N.C.
We
have
sentences
However,
involving
death
an infant.
onment in certain cases
factually
fact
in
or more cases
similar to
one under
“the
one
imprisonment is
juries
have
life
review
recommended
determinative,
alone, on the issue of whether the death
standing
Green,
penalty
disproportionate
is
the case under review.”
46.
S.E.2d at
present
cases,
refers us to two
other than
Defendant
case
discussed,
juries
already
following capital
which
ones we have
cases are
proceedings recommended life sentences. These
sentencing
*44
315
v.
STATE BURR
clearly
present
distinguishable from the
In
case
their facts.
State
Huff,
532,
328 N.C.
S.E.2d sixty-eight years old, defendants were premeditation and were deliberation not elements of the offense as charged. Here, thirty-two years old, defendant was and he was con- premeditated victed of the and deliberated murder of a four-month- old child.
Further, present we conclude the case is similar more certain cases in which propor we found the have sentence of death than tionate to those in we dispro which have found the sentence portionate juries or those in consistently which have returned imprisonment. E.g., recommendations of life Spruill, State v. acquaintance (1994) (murder S.E.2d 279 an which jury only
the found as the aggravating circumstance that the murder especially heinous, atrocious, propor was or cruel—death sentence tionate), petition - U.S.L.W. - (No. 94-9410, 19 cert. filed, May 1995);Syriani, jury 333 N.C. (murder S.E.2d 118 in which the only as aggravating espe found circumstance that murder was cially heinous, atrocious, or cruel and in which was con solely theory premeditation victed under and deliberation— proportionate); Huffstetler, death sentence (murder elderly only female in which aggra found the
vating circumstance to be especially heinous, murder was atrocious, or proportionate). cruel—death sentence carefully
After comparing pool all case others in the proportionality review, used for we conclude that it falls within the first-degree previously upheld class of murders in which we have penalty. foregoing reasons, death For we conclude that the sen- present tence of death entered in disproportionate. case is not Having rejected considered and all of defendant’s assignments error, pro- we hold sentencing that defendant received a fair trial and prejudicial ceeding, Comparing free error. this case similar penalty imposed considering cases which the death was both defendant, the crime and we hold a matter cannot as of law penalty disproportionate Therefore, death the sen- excessive. *45 COURT IN THE SUPREME
STATE SIMPSON against must be and is left tence of death entered undisturbed.
NO ERROR. part. in in the result concurring Justice Whichakd misstate prosecutor that the did not XX, agree I do not On issue capital explanation sentencing of the in his Issue Three the law proceeding. Frye’s opin- dissenting the stated Justice For reasons simultaneously here- McLaughlin, filed both ions McCarver jury prosecutor’s that the must be unan- with, I believe the statement negative was incorrect. Issue Three in the imous answer McLaughlin, case, however, this unlike in McCarver and In judge. Further, prosecutor, not the there was misstatement was trial, objection the standard of review is no to the statement at so require as trial egregious was so court to whether the error rose to mero motu. I do not believe the misstatement intervene ex level, that, presented, I there nor do believe total context jury’s an possibility the had effect is serious statement in the I concur in the result reached on issue decision. therefore opinion Court, though reasoning. disagreeing for the joins opinion. concurring FRYE in this
Justice OF PERRIE DYON SIMPSON NORTH CAROLINA
No. 43A93 (Filed 1995) 8 September jury Jury (NCI4th)— first-degree selec- § 1. murder — concerning penalty— questions death automatic tion — objections sustained for a first- during court did not err selection trial objections questions degree sustaining murder State’s jurors identify any prospective purportedly who designed automatically penalty when the murder would vote for the death premeditated. juror, through individual, Each seated was sequestered
examination, abundantly aware of the made proceedings; guilt had nature issue