STATE OF NORTH CAROLINA v. HENRY LEE HUNT AND ELWELL BARNES
No. 5A86
In the Supreme Court of North Carolina
Filed 3 November 1988
323 N.C. 407
U.S. ---, 100 L.Ed. 2d 384 (1988), requires that defendant be given a new sentencing hearing. Accordingly, I dissent from that portion of the Court‘s opinion which rejects defendant‘s argument based upon the holding of Mills. I concur in the result reached by the majority on the guilt phase issues.
STATE OF NORTH CAROLINA v. HENRY LEE HUNT AND ELWELL BARNES
No. 5A86
(Filed 3 November 1988)
1. Criminal Law § 15.1— murder—inflammatory pretrial publicity—change of venue denied
The trial court did not err in a prosecution for first degree murder by denying defendant Hunt‘s motion for a change of venue or a special venire based on inflammatory media coverage where, although the trial court found that some of the newspaper articles were inflammatory, there was no evidence of the effect of the news reports on the residents of Robeson County.
2. Jury § 6— murder—individual voir dire denied—no prejudice from remarks of jurors
The trial judge did not abuse his discretion in a prosecution for first degree murder by denying defendant Hunt‘s motion for individual voir dire and sequestration of prospective jurors where 146 potential jurors eventually had to be examined and the trial judge allowed selected individual voir dire whenever defendant requested it. Defendant was not prejudiced by certain remarks of prospective jurors.
3. Criminal Law § 92.1— murder—multiple defendants—consolidation proper
The trial court did not err by consolidating first degree murder cases for trial where one defendant, whom defendant Hunt claims he could not call as a witness because of the consolidation, was not called and it is not known whether he would have refused to testify; the witness could not have been compelled to testify if he had exercised his constitutional right not to incriminate himself; and the defense of defendant Barnes was not so antagonistic to the defenses of the other defendants that a severance was required.
4. Criminal Law § 92.1— conspiracy to murder—consolidation for trial—transactional connection
There was a transactional connection supporting the consolidation for trial of two conspiracy and two murder charges where the second murder was committed to avoid detection for the first murder.
5. Criminal Law § 73.2— conspiracy to murder—statements not hearsay
Testimony in a murder prosecution that the witness‘s wife had said that she was going to insure the victim and have him killed was not hearsay and was properly admitted. The testimony was not to prove that the victim‘s wife had insured the victim to have him killed, but was offered to show why the three defendants conspired to kill and then killed the victim.
6. Constitutional Law § 72; Criminal Law § 77.3— murder—statement of codefendant
The trial court did not err in a murder prosecution by admitting into evidence an extrajudicial statement by a codefendant in which the codefendant recanted an earlier statement taking full blame and said that he had made that statement to protect someone. Defendant Hunt advanced no reason and the court could think of no reason the jury would infer that defendant Hunt was the person being protected.
7. Criminal Law § 106— conspiracy and murder—evidence sufficient
The evidence was sufficient for the jury to find defendant Hunt guilty of first degree murder and of conspiracy to commit the murder.
8. Homicide § 21.5; Criminal Law § 9— murder and conspiracy to murder—evidence of constructive presence—sufficient
The trial court did not err in a prosecution for conspiracy and murder by denying defendant Barnes’ motion to dismiss as to the murder of Jackie Ransom where there was evidence that defendant Barnes asked Rogers Locklear whether he could take his brother‘s place in killing Jackie Ransom, defendant Barnes took Rogers Locklear to meet Henry Lee Hunt, defendant Barnes and Hunt were together when Rogers Locklear last saw them on the night of the murder, later that night the two men went to Hunt‘s trailer, the next morning defendant Barnes said he and Hunt had killed Ransom for $2,000, and defendant Barnes said Hunt had shot Ransom. The evidence was sufficient for the jury to conclude that defendant Barnes was present when the killing occurred with the intent to aid Hunt in the commission of the offense and that Hunt was aware of this intent.
9. Homicide § 21.5; Criminal Law § 9— conspiracy and murder—evidence sufficient
There was sufficient evidence for the jury to find that defendant Barnes aided and abetted in the murder of Larry Jones where there was evidence that defendant Barnes was in the automobile when Larry Jones was shot by Hunt, Barnes then started to shoot Larry Jones with a shotgun, Hunt told Barnes not to shoot Larry Jones and Hunt then shot Larry Jones again, and Barnes stood watch while Hunt and Ratley carried Jones’ body into the woods and buried it.
10. Conspiracy § 6— conspiracy to murder—evidence sufficient
The trial court did not err by denying defendant Barnes’ motions to dismiss two charges of conspiracy to murder where defendant Barnes asked Rogers Locklear if he could take his brother‘s place and kill Jackie Ransom;
defendant Barnes carried Rogers Locklear to Hunt‘s trailer and, after talking privately with Hunt, told Locklear “I got the gun. Me and Babe can get the job done“; there was evidence that Hunt told several people he would kill Larry Jones; Hunt and defendant Barnes were riding in an automobile with Jerome Ratley when they lured Larry Jones into the automobile, took him to a secluded place, and killed him; and defendant Barnes then said “that man was about to cause me to pull a life sentence.”
11. Criminal Law § 102.6— murder and conspiracy—prosecutor‘s argument—failure to intervene ex mero motu—no error
The trial court did not err in a prosecution for murder and conspiracy by not intervening ex mero motu when the prosecutor argued that defendant Hunt was a professional assassin because the evidence supported a reasonable inference that defendant Hunt was a professional; when the prosecutor read questions from the Bible supporting the death penalty because the prosecutor was anticipating reliance by the defense on the commandment “Thou shalt not kill“; and references to previous sentences by the prosecutor did not suggest the possibility of parole in so direct a manner as to amount to a gross impropriety.
12. Homicide § 25— murder and conspiracy—instructions—no error
There was no plain error in a prosecution for murder and conspiracy where defendant Hunt argued that the court‘s instructions were so complex and so confusing that they were incomprehensible to the jury. N.C. Rules of Appellate Procedure, Rule 10(b)(2).
13. Criminal Law § 135.8— murder—aggravating factor—prior conviction involving violence to person
There was no prejudice in a prosecution for murder by allowing the admission of evidence in the sentencing phase to support the aggravating factor of conviction of a felony involving the use of or threat of violence to the person that defendant Hunt had previously been convicted of conspiracy to dynamite a dwelling house and of dynamiting a dwelling house where the State was not able to offer any evidence that the house was occupied at the time of the dynamiting, the court allowed defendant‘s motion to strike, the court instructed the jury not to consider the evidence, and the State introduced evidence that defendant had been convicted of three separate charges of armed robbery.
14. Criminal Law § 135.8— murder—aggravating factor—murder committed to avoid arrest
The trial court did not err in a prosecution for murder by submitting to the jury the aggravating factor that the crime was committed to avoid or prevent a lawful arrest or to effect an escape from custody where the evidence, viewed in the light most favorable to the State, raises more than an inference that defendant Barnes abetted and aided defendant Hunt in killing the second victim to avoid being arrested for the murder of the first victim.
15. Criminal Law § 135.8— murder—aggravating factor—avoidance of another‘s arrest
The trial court did not err in the sentencing phase of a prosecution for murder by instructing the jury that in order to find the aggravating factor specified in
16. Criminal Law § 135.8— murder—aggravating factor—pecuniary gain
The trial court did not err when sentencing defendant Barnes for murder by submitting the aggravating factor that the murder was committed for pecuniary gain where there was evidence that, when Rogers Locklear went to A. R. Barnes’ house, defendant Barnes asked Locklear if he would let him take A. R.‘s place and if he would pay him the same amount he had offered to A. R. and, when asked on the morning after the murder why he and Hunt had killed Ransom, defendant Barnes replied “for $2,000.”
17. Criminal Law § 135.4— contract killing—aiding and abetting—Enmund v. Florida distinguished
Enmund v. Florida, 458 U.S. 782 (1982), did not apply where the evidence showed that defendant Barnes was an aider and abettor in two murders which were committed with premeditation and deliberation and that defendant Barnes intended that the victims be killed.
18. Criminal Law § 135.7— capital sentencing—consideration of mitigating factors—instructions
The death penalty is not unconstitutional as applied in North Carolina because the jury is instructed that one issue is “Do you find beyond a reasonable doubt that the mitigating circumstance or circumstances you have found are insufficient to outweigh the aggravating circumstance you have found?” If the jury must be satisfied beyond a reasonable doubt before finding that the mitigating circumstances outweigh the aggravating circumstances and the jury is in a state of equipoise as to the issue, it would answer the issue “no.” Furthermore, the argument that it was error for the court to charge the jury that they must be unanimous before they could find a mitigating circumstance was overruled.
19. Criminal Law § 135.7; Constitutional Law § 80; Jury § 7.11— death penalty—prior rulings upheld
The Supreme Court in a murder prosecution overruled assignments of error challenging the North Carolina death penalty as unconstitutional, the death qualification of the jury, instructions on the duty to recommend death, and the placement of the burden of proof for mitigating circumstances on defendants where those issues had previously been decided against defendants’ positions.
20. Constitutional Law § 30— murder—no bill of particulars for aggravating factors—no disclosure of impeaching or exculpatory information—no error
The Supreme Court in a murder prosecution declined to overrule prior decisions on issues involving the denial of a bill of particulars regarding aggravating factors and the denial of a motion for disclosure of impeaching or exculpatory information.
21. Jury § 6; Constitutional Law § 45— murder—denial of motion for sequestration and individual voir dire—denial of motion to appear as co-counsel—no error
The Supreme Court in a murder prosecution declined to overrule previous opinions regarding the issues of denial of a motion for sequestration and individual voir dire and denial of a motion to appear as co-counsel.
22. Criminal Law § 135.10— murder—death sentences—not disproportionate
Death sentences for two defendants who committed a contract killing and then eliminated a witness were not imposed under the influence of passion, prejudice and other arbitrary factors and were not disproportionate.
Chief Justice EXUM concurring.
Justice FRYE dissenting as to sentence.
APPEAL by defendants pursuant to
Lacy H. Thornburg, Attorney General, by G. Patrick Murphy, Assistant Attorney General (in Hunt case), and Ralf F. Haskell, Special Deputy Attorney General (in Barnes case), for the State (original brief and argument); Lacy H. Thornburg, Attorney General, James J. Coman, Senior Deputy Attorney General, William N. Farrell, Jr., Special Deputy Attorney General, Joan H. Byers, Special Deputy Attorney General, and Barry S. McNeill, Assistant Attorney General, for the State (supplemental brief and argument).
H. Mitchell Baker, III and Angus B. Thompson, II, for defendant appellant Hunt; Bruce W. Huggins, for defendant appellant Barnes (original brief and argument); Malcolm Ray Hunter, Jr., Appellate Defender, and Louis D. Bilionis, for defendant appellants (supplemental brief and argument).
E. Ann Christian and Robert E. Zaytoun for North Carolina Academy of Trial Lawyers, amicus curiae.
John A. Dusenbury, Jr., for North Carolina Association of Black Lawyers, amicus curiae.
WEBB, Justice.
Henry Lee Hunt, Elwell Barnes and A. R. Barnes were tried for the murder and conspiracy to commit murder of Jackie Ransom. In the same trial Hunt and Elwell Barnes were tried for the murder and conspiracy to commit the murder of Larry Jones. Evidence at the trial tended to show that Dottie Locklear Ransom had first married Rogers Locklear. Locklear was a construction worker and often worked out of town for several days at a time. Dottie began seeing Jackie Ransom while Locklear was out of town. She eventually married him, although she never divorced Locklear. Ransom began living with her while Locklear was out of town, and would leave the house when it was time for Locklear to return.
In July 1984, Dottie asked Locklear about the possibility of insuring Ransom‘s life and then having him killed. She wanted to
Dottie asked Locklear to find a hit man to kill Ransom. Locklear asked his brother Harry to run over Ransom with his car. Harry refused, but told Locklear that if he wanted a hit man he should see A. R. Barnes.
On 16 August, Locklear met A. R. Barnes and gave him a ride to Locklear‘s house. After some negotiation Rogers and Dottie Locklear agreed to pay A. R. Barnes $2,000 to kill Jackie Ransom. A. R. Barnes said “If I don‘t kill him, I‘ll get it done.”
Locklear and A. R. met several times after that. On 8 September, Locklear went to A. R.‘s house to see if he was going to kill Ransom, and to tell him the insurance policy had been received. Locklear did not see A. R., but saw his brother, the defendant Elwell “Babe” Barnes. Elwell Barnes asked Locklear if he could take his brother‘s place, and kill Ransom for the same compensation Locklear had promised his brother. Locklear replied that it was up to him.
Elwell Barnes then told Locklear to drive him to the home of the defendant Henry Lee “Mulehead” “Buck” Hunt. When they arrived at Hunt‘s trailer, Barnes talked with Hunt privately for about 10 minutes. Later, Hunt got into the car, put his hand on his pocket and told Locklear “I got the gun. Me and Babe can get the job done.” Barnes replied “Yeah.” They drove past a house and Hunt looked at it and said “That looks like where Jackie stay, there.” They then drove down a road into some woods and Hunt put the gun in some bushes. They then drove back into town, and Locklear pointed out Jackie Ransom. Hunt told Locklear to get his wife and take her to a place at which there would be witnesses.
At about 11:00 or 11:30 that night the defendants Hunt and Elwell Barnes returned to Hunt‘s trailer. Hunt took off his clothes and put them in the washing machine, and put a pistol under his mattress. Barnes spent the night on the couch. The next morning Bernice Cummings, who lived with Hunt at his trailer, asked Barnes where they had been the night before. Barnes replied that
Later that day Locklear drove to Hunt‘s trailer. Hunt walked up to him and said “I killed Jackie last night.” He said he wanted his money in 30 days or he would kill Dottie and Locklear. Later that day, Ransom‘s body was found in a shallow grave. An autopsy revealed that Ransom died from a gunshot wound to the head.
The next day, 10 September, the defendants were at Hunt‘s trailer. Buddy Roe Barton drove up. Hunt went to Barton‘s car and returned after a few minutes, and stated that Larry Jones was running his mouth, and that he “would put a stop to his damn mouth.”
Larry Jones lived with Hunt‘s sister Aganora. He met several times with Detective Mike Stogner of the Lumberton Police Department and SBI Agent Lee Sampson and talked about Ransom‘s death.
On 14 September, Hunt told Bernice Cummings that he was going to “kill that water-headed, ratting son-of-a-bitch Larry Jones” and wanted to get a shovel so he would “bury him where he never could be found.” He stated that Jones had been running his mouth and that he knew that Hunt had killed Ransom. Hunt procured a shovel from Mitt Jones and put it in his trunk. Later, Hunt got a shotgun and put it in the trunk of Bernice‘s car. Hunt said to Aganora and Bernice that he was going to kill Larry Jones because Jones knew he killed Jackie Ransom, and could get him a life sentence.
Later that day Hunt and Elwell Barnes were riding in an automobile driven by Jerome Ratley when they picked up Jones. They went to the home of a person called “String Bean.” They left that place and continued driving. Hunt told Ratley to turn off onto a dirt road, then onto a tram road. Then Hunt told Ratley to stop and turn off the lights. Hunt then turned around and shot Jones in the chest. Ratley saw two or three shots. Hunt said “You don‘t eat no more cheese for no damn body else. I‘ll meet you in heaven or hell, one.” Hunt then pulled Jones out of the car, and Barnes got the shotgun from the trunk. Jones started mumbling “Mule, Mule.” Barnes pointed the shotgun at Jones’ head. Hunt
The next morning, 16 September, Hunt told Bernice Cummings that he had carried Larry Jones to where he would never be found.
On 1 October, Jones’ body was found. An autopsy revealed that he died of a gunshot wound to the head. A ballistics expert testified that bullets removed from the body were fired from the .25 caliber Beretta that Hunt had given his son-in-law after the murders. While in jail, Hunt told his son-in-law he had killed Ransom and Jones. He also told him to get rid of the gun, and to get his brother to “get rid of the black guy,” meaning Jerome Ratley, because “He‘s the one that can hurt me most.”
At the close of all the evidence, the trial court granted a mistrial as to A. R. Barnes. The jury returned verdicts of guilty on all counts as to Elwell Barnes and Hunt, and recommended that both be sentenced to death for each murder charge. The court sentenced them to death for each murder charge and ten years imprisonment for each conspiracy charge.
WEBB, Justice.
[1] In his first assignment of error, defendant Hunt contends the trial court erred in denying his motion for a change of venue or a special venire. He argues that extensive inflammatory media coverage of the murders, coupled with extensive word-of-mouth publicity, made it impossible for him to receive a fair trial by a Robeson County jury.
If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:
(1) Transfer the proceeding to another county in the prosecutorial district as defined in G.S. 7A-60 or to another county in an adjoining prosecutorial district as defined in G.S. 7A-60, or
(2) Order a special venire under the terms of G.S. 15A-958.
The purpose of
“From what I know about him, he‘s the most dangerous person in Robeson County” [Sheriff‘s Department Detective] Locklear said. “He has a reputation for murder.”
....
“He‘s a professional killer,” [Police Captain] Taylor said of Hunt. “... He seeks out people, stalks them, and then lures them away from a place, and then kills them.”
....
Robeson County Sheriff Hubert Stone said, “We consider him (Hunt) to be one of the most hardened criminals in Robeson County. We‘re investigating him into some other murders in the Lumberton area as well.”
Stone would not say which murders Hunt may be connected with but said the number may be six or seven.
Hunt has previously been arrested for assault and battery, larceny of hogs, manufacturing non-tax paid liquor, conspiracy in use of explosives, and armed robbery.
Several other articles contained similar information.
The court found that some of the newspaper articles were inflammatory but found the defendant had not made a showing that the prospective jurors would base their decisions upon pre-
In the court‘s ruling we find no error. This case is distinguishable from State v. Jerrett, 309 N.C. 239, 307 S.E. 2d 339 (1983), in which there was plenary testimony that the majority of residents of Alleghany County had formed opinions which would make it difficult for them to decide the case based on the evidence produced in court. In this case there was no evidence of the effect of the news reports on the residents of Robeson County other than the reports. Of the twelve jurors who decided the case, five had no prior knowledge of the case, five had read something about it and two had heard it discussed. All jurors stated unequivocally that they could make their decisions unaffected by anything they had heard or read. We hold that we cannot disturb the ruling of the superior court that the defendant Hunt did not show it was “reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.”
[2] Defendant Hunt further contends that the trial court erred in denying his motion for individual voir dire and sequestration of the prospective jurors. He argues that he was prejudiced when several potential jurors made certain remarks in the presence of other potential jurors.
We hold that the defendant has shown no abuse of discretion in the present case, especially in light of the fact that 146 potential jurors eventually had to be examined, and in light of the fact that the trial judge did allow selective individual voir dire whenever defendant requested it. Furthermore, we are not convinced that the defendant was prejudiced by the remarks by the
[3] Both defendants assign error to the consolidation of their cases for trial with the cases of the other defendants pursuant to
Hunt argues that he was prejudiced by the consolidation of the cases for trial because it prevented him from the full benefit of out of court statements by A. R. Barnes. A. R. Barnes made two statements to officers on 27 September 1984 in which he told them he shot Jackie Ransom in self-defense during a time Hunt was not present. On 28 September 1984 A. R. Barnes recanted these statements. Hunt contends he was prejudiced by the consolidation of the trials because he could not call A. R. Barnes as a witness and cross-examine him about these statements. We hold Hunt has not shown prejudice. He did not attempt to call A. R. Barnes as a witness and we do not know whether A. R. Barnes would have refused to testify. If the cases had not been consolidated A. R. Barnes could not have been compelled to testify if he had exercised his constitutional right not to incriminate himself. Hunt was not prejudiced by the consolidation of the cases for trial.
Elwell Barnes contends it was error to consolidate his trial with the trial of A. R. Barnes because his defense was antagonistic to the defense of A. R. Barnes. He says the theory of his defense as to the murder of Jackie Ransom was that A. R. Barnes killed Jackie Ransom without any assistance from Elwell Barnes. As to the murder of Larry Jones, Elwell Barnes says the killing was done by Henry Lee Hunt and Elwell Barnes was a “passive participant.” Elwell Barnes argues that if he had been able to cross-examine A. R. Barnes he could have shown A. R. Barnes’ confession was true and his recantation of the confession was false and “subsequently destroyed the State‘s theory Elwell Barnes aided and abetted Henry Lee Hunt in the murder of Larry Jones.” One difficulty with this argument is that had A. R. Barnes pled the Fifth Amendment, Elwell Barnes could not have called him as a witness if the trials of the two men had been severed.
In State v. Belton, 318 N.C. 141, 347 S.E. 2d 755 (1986) and State v. Nelson, 298 N.C. 573, 260 S.E. 2d 629 (1979), cert. denied
The test is whether the conflict in defendants’ respective positions at trial is of such a nature that, considering all the other evidence in the case, defendants were denied a fair trial.
...
Prejudice would ordinarily result where codefendants’ defenses are so irreconcilable that “the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” ... Severance should ordinarily be granted where defenses are so discrepant as to pose an evidentiary contest more between defendants themselves than between the state and defendants. ... To be avoided is the spectacle where the state simply stands by and witnesses “a combat in which the defendants [attempt] to destroy each other.”
Id. at 587, 260 S.E. 2d at 640.
In this case there was plenary evidence of Elwell Barnes’ guilt other than the statements of A. R. Barnes. The statements of A. R. Barnes tended to exonerate Elwell Barnes. This is not a case in which the State simply stood by and allowed the defendants to convict each other. The defense of Elwell Barnes was not so antagonistic to the defenses of the other defendants that a severance was required.
[4] Each defendant also contends it was error to consolidate for trial the two conspiracy and two murder charges against him.
Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.
We have been liberal in our interpretation of this section. In State v. Bracey, 303 N.C. 112, 277 S.E. 2d 390 (1981), we held there was a transactional connection, which supported consolida-
[5] The defendant Hunt under one assignment of error contends that certain testimony should have been excluded. On direct examination Rogers Locklear testified as follows:
Q: ... Along about June or July 1984, did you have occasion to have a conversation with your wife, Dottie Ransom?
....
MR. THOMPSON: Object.
....
THE COURT: Overruled, Gentlemen.
Q: Did you, sir?
A: Yes, sir.
Q: All right. Now, tell us about that conversation with Dottie Ransom, please.
A: Well, she told me that she was going to take insurance out on Jackie.
Q: All right. Go ahead.
A: And I asked her why was she going to take insurance out on him and she says, “So I can have him killed.”
The defendant argues that this testimony was hearsay and his right to confront a witness against him guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution was violated by its admission. We hold this testimony was not hearsay and was properly admitted.
[6] Mike Stogner, a detective with the Robeson County Sheriff‘s Department, testified for the State. On cross-examination by the counsel for A. R. Barnes the following colloquy occurred.
Q: Was the statement given to you by A. R. Barnes on the 28th different from that given to you on the 27th?
A: Yes, sir, it was.
Q: How was it different?
A: It was a complete recantation of the original statement where he denied the first statement.
Q: All right. Did he tell you why he had given the statement that he did on September 27, 1984?
MR. BAKER: Object.
THE COURT: OVERRULED.
THE WITNESS: Yes, sir, he did.
Q: (By Mr. Bullard:) Would you tell us about that, please?
A: “A. R. Barnes stated that what he told Lee Sampson, SBI, and Detective Mike Stogner on Thursday and Thursday night, 9-27-84, about killing Jackie Ransom was not true. He was scared and was trying to cover up for someone else.”
A. R. Barnes had made two statements to Mr. Stogner on 27 September 1984 in which he took full responsibility for the killing of Jackie Ransom. On 28 September 1984 he recanted this state-
The defendant Hunt contends that this extrajudicial statement of A. R. Barnes implicated him and his constitutional rights as delineated in Bruton v. United States, 391 U.S. 123 (1968), were violated. Bruton holds that a defendant‘s Sixth Amendment right to confront witnesses against him is violated if he is implicated by the confession of a codefendant being tried with him who does not testify.
The defendant relies on State v. Gonzalez, 311 N.C. 80, 316 S.E. 2d 229 (1984) and State v. Owens, 75 N.C. App. 513, 331 S.E. 2d 311 (1985). Both these cases are distinguishable from this case. In Gonzalez we held it violated the rule of Bruton when an extrajudicial statement of a codefendant was received in evidence which said, “I told him I was with two guys, but that I did not rob anyone, they did.” We said this implicated the defendant because two men had committed the robbery. In this case A. R. Barnes’ statement did not refer to anyone else who was involved in the killing of Jackie Ransom. In Owens the Court of Appeals held it was error to admit an extrajudicial statement of a nontestifying codefendant that he picked up the defendant shortly after a robbery because the defendant pointed a gun at him. The Court of Appeals said this placed the defendant near the scene shortly after a robbery with a gun similar to the one used in the robbery. No such incriminating evidence was introduced in this case.
[8] The defendant Elwell Barnes contends all the charges against him should have been dismissed. The State‘s theory was that Elwell aided and abetted in the two murders. A person is guilty of a crime by aiding and abetting in its commission if he is present at the scene of the crime, with the intent to aid the perpetrators in the commission of the offense should his assistance become necessary and such intent was communicated to the actual perpetrators. State v. Sanders, 288 N.C. 285, 218 S.E. 2d 352 (1975), cert. denied, 423 U.S. 1091 (1976).
Elwell Barnes contends that all the evidence shows he was not actually or constructively present when Henry Lee Hunt killed Jackie Ransom. He argues further that assuming it may be inferred from the evidence he was present at the scene there is no evidence of the actual role he played in the crime. We hold the evidence that Elwell Barnes asked Rogers Locklear whether he could take his brother‘s place in killing Jackie Ransom, that Elwell Barnes took Rogers Locklear to meet Henry Lee Hunt, that Elwell Barnes and Hunt were together when Rogers Locklear last saw them on the night of the murder, that later that night the two men went to Hunt‘s trailer, that the next morning Elwell Barnes said he and Hunt had killed Ransom for $2,000, and that he said Hunt had shot Ransom is evidence from which the jury could conclude Elwell Barnes was present when the killing occurred with the intent to aid Hunt in the commission of the offense and Hunt was aware of this intent. It was not error to deny Elwell Barnes’ motion to dismiss as to the murder of Jackie Ransom.
[10] Elwell Barnes contends there was not sufficient evidence for the jury to find he conspired to kill either Jackie Ransom or Larry Jones. A conspiracy is an agreement by two or more persons to commit an unlawful act or to do a lawful act by unlawful means. State v. Horton, 275 N.C. 651, 170 S.E. 2d 466 (1969), cert. denied, 398 U.S. 959 (1970). We hold there was sufficient evidence for the jury to find Elwell Barnes agreed with Hunt and Rogers Locklear to murder Jackie Ransom and that he agreed with Hunt to murder Larry Jones.
As to the charge of conspiracy to murder Jackie Ransom the evidence shows Elwell Barnes asked Rogers Locklear if he could take his brother‘s place and kill Jackie Ransom. Elwell Barnes then carried Rogers Locklear to Hunt‘s trailer and after Elwell Barnes had talked privately for a few minutes with Hunt, Hunt told Locklear, “I got the gun. Me and Babe can get the job done.” This evidence supported the jury finding that Elwell Barnes agreed with Hunt and Locklear to murder Jackie Ransom. As to the charge of conspiracy to murder Larry Jones there was evidence that Hunt told several people he would kill Larry Jones. Hunt and Barnes were riding in an automobile with Jerome Ratley when they lured Larry Jones into the automobile, took him to a secluded place and killed him. Elwell Barnes then said, “That man was about to cause me to pull a life sentence.” This was evidence which supports the jury finding that Elwell Barnes and Hunt agreed to murder Larry Jones. It was not error to deny the motions to dismiss these two charges of conspiracy.
Defendant Hunt first excepts to this statement made during the district attorney‘s argument at the guilt phase:
What you got is cool deliberation. The deliberation, Ladies and Gentlemen of the Jury, of the professional. The deliberation of the professional assassin, the contract killer that the State has proven you are dealing with in this lawsuit.
In State v. Swink, 29 N.C. App. 745, 225 S.E. 2d 646 (1976), the Court of Appeals held that it was error for the prosecutor to refer to the defendant as a “professional criminal” in his closing argument. In State v. Miller, 271 N.C. 646, 157 S.E. 2d 335 (1967), this Court held that it was error for the prosecutor to argue, in effect, that the defendants were habitual storebreakers. Those cases, however, are distinguishable in two respects from the present case. In each of those cases, the defendant objected to the remark; the defendant in the present case did not do so. More important, the evidence in the present case clearly supports a reasonable inference that defendant Hunt is in fact a “professional assassin.” A “professional” is “one that engages in a particular pursuit, study, or science for gain or livelihood.” Webster‘s Third New International Dictionary p. 1811 (1964). An assassin is “one that murders either for hire or from fanatic adherence to a cause.” Id. at 130. The State‘s evidence tended to show that Hunt committed a murder for $2,000. There was also evidence that Hunt had said, explaining why he had a glove in his pocket, “If
you had killed as many men as I had, you would have a brown glove in your pocket, too. . . .” We hold that the trial court did not err in failing to intervene ex mero motu to correct this remark.
Defendant Hunt next excepts to a portion of the district attorney‘s closing argument at the penalty phase in which he read quotations from the Bible, including the following: “but he that smiteth a man so that he dies, he shall surely be put to death,” “Who so killeth any person, the murderer shall be put to death by the mouths of witnesses. Moreover, ye shall take no satisfaction for the life of a murderer which is guilty of death, but he shall surely be put to death.” The district attorney was merely anticipating any possible reliance by the defense on the commandment “Thou shalt not kill,” and arguing that the death penalty is not inconsistent with the Bible. This is a portion of the district attorney‘s argument:
What would happen, Ladies and Gentlemen of the Jury, if one of the lawyers gets up here and he picks up this Good Book and he says, “. . . do you know what the Good Book says? It says Thou shalt not kill and that certainly means my client over here but it means . . . you, Ladies and Gentlemen of the Jury.” . . . If he starts that, you say “Wait a minute Mr. Lawyer. I want you to read just a few verses down from that Commandment where it says, ‘. . . but he that smiteth a man so that he die, he shall surely be put to death.‘”
In State v. Brown, 320 N.C. 179, 358 S.E. 2d 1, cert. denied, --- U.S. ---, 98 L.Ed. 2d 406 (1987) and in State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983), we held that arguments similar to this one were not so improper as to require intervention by the trial court ex mero motu.
Defendant Hunt next excepts to the district attorney‘s discussion of his previous prison sentences:
Now, the interesting thing, here, is that he received, according to this Judgment and Commitment, not less than ten nor more than fifteen years on case 155 . . . in case 156? Not less than ten nor more than fifteen years to begin at the expiration, end of the sentence in case 155. . . . And then in
case 157, he‘s given ten to fifteen years to begin at the expiration of the sentence in case 156. . . . We are up to thirty to forty-five years in prison. . . . . These judgments were entered in 1971 . . . and yet he‘s out here, now. If he was where these judgments say, Larry Jones would be alive. Jackie Ransom would be alive. . . .
The defendant argues that the district attorney improperly suggested the likelihood that the defendant would be paroled if the jury recommended a life sentence.
A defendant‘s eligibility for parole is not a proper matter for the jury‘s consideration. State v. Brown, 320 N.C. 179, 358 S.E. 2d 1. However, in the present case, as in Brown, the word “parole” was never used, and there was no specific mention of the possibility that a life sentence could mean release in 20 years. We hold that the district attorney‘s argument did not suggest the possibility of parole in so direct a manner as to amount to a gross impropriety requiring ex mero motu intervention by the trial court. See Brown. This assignment of error is overruled.
The same reasoning requires us to overrule the defendant Barnes’ tenth assignment of error, in which Barnes contends that the trial court should have intervened ex mero motu when the district attorney made reference to a previous sentence:
Had Elwell Barnes, alias Babe, been previously convicted of another capital felony, the answer is obviously yes . . . the judgment says, “it is therefore considered, ordered and adjudged that the said Elwell Barnes be and is hereby sentenced to State‘s prison for and during the term” . . . get this . . . “of his natural life.” And, yet, here he is out in 1981, and within three years, has killed two people. . . . “Natural life,” says it right here. What can you depend on with that type of sentence, Ladies and Gentlemen of the Jury?
This argument did not suggest the possibility of parole in so direct a manner as to amount to a gross impropriety requiring ex mero motu intervention by the trial court.
[12] Defendant Hunt next contends the trial court committed plain error in that its instructions at both the guilt and penalty
We find no merit in this assignment of error.
No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided that opportunity was given to the party to make the objection out of the hearing of the jury. . . .
In the present case, after the trial court gave its jury instructions at the guilt phase and at the penalty phase, the jurors were sent to the jury room and the trial court asked the lawyers if they had any requests for corrections or additions. Hunt‘s counsel answered in the negative at the guilt phase, and at the penalty phase requested only one additional instruction, which the trial court gave. Hunt‘s counsel never objected to any portion of the instructions, or alleged that anything in the instructions was confusing.
Under the plain error rule, an appellate court can review an error that was not brought to the trial court‘s attention, but only if the error (1) is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or (2) amounts to a denial of a fundamental right of the accused, or (3) results in a miscarriage of justice, or (4) denies the defendant a fair trial, or (5) seriously affects the fairness, integrity, or public reputation of judicial proceedings, or (6) has a probable impact on the jury‘s finding that the defendant was guilty. State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). In the present case, however, defendant has not pointed out, nor can we find, anything in the trial court‘s instructions that amounts to plain error. We further note that the jury never requested any additional instructions or clarifications. This assignment of error is overruled.
[13] The defendant Hunt next contends the court erred at the sentencing phase in allowing the admission of evidence that he had previously been convicted of conspiracy to dynamite a dwell-
We hold that the defendant Hunt was not prejudiced by the admission of the evidence of the dynamiting convictions. The court instructed the jury not to consider it and we assume the jury followed the court‘s instructions. State v. Clark, 298 N.C. 529, 259 S.E. 2d 271 (1979). There was uncontradicted evidence that the defendant Hunt had committed armed robbery. This evidence supports the finding of this aggravating circumstance.
[14] Defendant Elwell Barnes next contends that the trial court erred in submitting to the jury in the Jones case the aggravating factor set out in
(4) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
The defendant argues that the submission of this factor was erroneous for three reasons. First, the defendant claims the evidence does not support a finding of this factor. We disagree. The evidence, when viewed in a light most favorable to the State, raises more than a reasonable inference that Barnes aided and abetted Hunt in killing Jones in order to avoid being arrested for the murder of Jackie Ransom. Especially important is the evidence that Barnes was well aware that Jones was talking to people about the murder of Jackie Ransom, and the evidence that Barnes stated after the killing, “That man was about to cause me to pull a life sentence.”
Second, defendant Barnes argues that
Third, defendant Barnes argues that the submission of this aggravating factor violates the merger rule as set forth in State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941, 64 L.Ed. 2d 796 (1980): “when a defendant is convicted of first degree murder under the felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony.” Id. at 113, 257 S.E. 2d at 568. The defendant‘s argument has no merit; the Cherry rule has no bearing on the present case, because defendant was convicted of first degree murder based not on the felony murder rule, but on the theory that he aided and abetted a premeditated and deliberated killing. Elwell Barnes also contends that the State prosecuted him for the murder of Larry Jones on the theory that he aided and abetted Henry Lee Hunt in the murder of Larry Jones for the purpose of avoiding arrest for the murder of Jackie Ransom. He contends that under Cherry this motive merged into the murder and cannot be used as an aggravating circumstance. The motive of the defendant is not an element of the crime and Cherry does not preclude its use as an aggravating circumstance.
[15] Defendant Barnes further contends that the trial court committed error when it instructed the jury that in order to find the aggravating factor specified in
We disagree. First, when the judge said “for the killing of Larry Jones” he made a verbal error, which he quickly corrected by saying “for the killing of Jackie Ransom.” Second, it was not error to instruct the jury to find the factor whether they found that Barnes acted to prevent his own arrest or to prevent Hunt‘s arrest.
[16] Defendant Barnes next contends that the trial court committed plain error in submitting to the jury in the Ransom case the aggravating factor set out in
[17] Defendant Elwell Barnes next assigns error to what he contends is the court‘s failure to comply with Enmund v. Florida, 458 U.S. 782, 73 L.Ed. 2d 1140 (1982). Enmund dealt with a felony murder. The United States Supreme Court held that an aider and abettor to a robbery in which the victims were killed could not be executed when all the evidence showed he did not intend that the victims be killed. In this case the evidence showed Elwell Barnes
[18] The defendant Elwell Barnes next contends that the death penalty as applied in this State is unconstitutional because the jury is not given proper guidance in considering aggravating and mitigating circumstances. He bases this argument on the way the jury is instructed to apply
Do you find beyond a reasonable doubt that the mitigating circumstance or circumstances you have found is, or are, insufficient to outweigh the aggravating circumstance you have found?
The defendant says this issue is deficient because if the jury is in equipoise it must answer the issue “yes” and impose the death penalty. We do not believe the defendant Barnes’ analysis of the issue is correct. If the jury must be satisfied beyond a reasonable doubt before finding the mitigating circumstances are insufficient to outweigh the aggravating circumstances and the jury is in a state of equipoise as to the issue it would answer the issue “no.” We hold the issue was properly submitted.
Both defendants argue that it was error for the court to charge the jury that they must be unanimous before they could find a mitigating circumstance. The defendants base this argument on Mills v. Maryland, 486 U.S. 367, 100 L.Ed. 2d 384 (1988), which dealt with the finding of mitigating circumstances in a capital case. For the reasons stated in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 (1988), we overrule this assignment of error.
[19, 20, 21] The defendants argue under separate assignments of error eleven issues which they recognize have been decided against their positions in previous cases. Each of the defendants asks that we find error because (1) he was not provided a bill of particulars regarding aggravating factors upon which the State would rely, (2) the death penalty is unconstitutional, and (3) the court placed the burden of proving mitigating circumstances on
Proportionality Review
[22] Having determined there is no error in the guilt or penalty phase of the trial sufficient to require a new trial or sentencing hearing, we are required by
The jury found as to Henry Lee Hunt two aggravating circumstances in the murder of Jackie Ransom. These were that he had previously been convicted of a felony involving the threat of violence to the person and that the murder of Jackie Ransom was for pecuniary gain. The jury found two aggravating circumstances in the murder of Larry Jones by Henry Lee Hunt. These were that he had been previously convicted of a felony involving a threat of violence to the person and that the murder was committed for the purpose of avoiding or preventing a lawful arrest. The jury found as to Elwell Barnes two aggravating circumstances in the murder of Jackie Ransom. These were that he had previously
Elwell Barnes contends that the death sentence was imposed upon him under the influence of passion, prejudice and other arbitrary factors because of certain questions asked by the prosecuting attorney on the jury voir dire and on cross-examination of a witness for Elwell Barnes. The district attorney asked each juror a question as to whether they could be a part of the “legal machinery” which might impose the death penalty in this case. Elwell Barnes says this committed the jury to impose the death penalty before hearing any evidence. We do not believe such an inference is properly made from these questions. The district attorney had a right to question the jurors as to their views on the death penalty and these were proper questions. We certainly cannot hold that the questions so inflamed the jury that the verdict was rendered under the influence of passion, prejudice, or any other arbitrary factor. A psychiatrist testified for Elwell Barnes that he had an IQ of 68 which indicated his abilities are in the upper range of mild retardation. He characterized Elwell Barnes as a “follower.” On cross-examination the psychiatrist was asked about a letter he had written to Elwell Barnes’ attorney in which he said he did not find any mitigating circumstances. Elwell Barnes says the jury must have believed the psychiatrist because they found no mitigating circumstances. If the jury believed the testimony of the psychiatrist this does not show they were under the influence of passion, prejudice or other arbitrary factor in reaching a verdict.
We can find no indication that the death penalty was imposed on either defendant under the influence of passion, prejudice or other arbitrary factor. We also hold that the record clearly supports the submission of the aggravating circumstances considered and found by the jury.
We now turn to our statutory duty of a proportionality review. This requires us to determine whether juries in this state
We deal first with the murder of Jackie Ransom by Elwell Barnes. The jury found two aggravating circumstances, that Elwell Barnes had previously been convicted of another capital felony and the murder of Jackie Ransom was committed for pecuniary gain. Four mitigating circumstances were submitted to the jury. The jury did not find three of the mitigating circumstances submitted which were (1) the murder was actually committed by Hunt and Elwell Barnes was only an accomplice and his participation was relatively minor, (2) Elwell Barnes was under the domination of another person, and (3) Elwell Barnes has an IQ of 68 which impairs his ability to perform intellectual functions, and which impairs his judgment and insight in everyday living. The jury found as a mitigating circumstance, “Any other circumstance or circumstances arising from the evidence which you the jury deem to have mitigating value.”
Elwell Barnes, relying on four cases involving contract killings which are State v. Lowery, 318 N.C. 54, 347 S.E. 2d 729 (1986); State v. Hinson, 310 N.C. 245, 311 S.E. 2d 256, cert. denied, 469 U.S. 839, 83 L.Ed. 2d 78 (1984); State v. Woods, 307 N.C. 213, 297 S.E. 2d 574 (1982); and State v. Parton, 303 N.C. 55, 277 S.E. 2d 410 (1981), argues that in none of these cases did the jury impose the death penalty and these cases are the most similar of the cases in the pool to this case. We note that in State v. McLaughlin, 323 N.C. 68, 372 S.E. 2d 49 (1988), we affirmed the death penalty in a contract murder case. In comparing this case with those in the pool it is worth noting that this is more than a contract killing case. The jury found that Elwell Barnes had previously been convicted of a capital crime and that he murdered again within a few days of the murder of Jackie Ransom. This is similar to State v. Robbins, 319 N.C. 465, 356 S.E. 2d 279, cert. denied, --- U.S. ---, 98 L.Ed. 2d 226 (1987), in which we affirmed
We deal next with the murder of Larry Jones by Elwell Barnes. Two aggravating circumstances were found by the jury. They were that Elwell Barnes had previously been convicted of a capital crime and that the murder was committed to prevent or avoid lawful arrest. The same mitigating circumstances were submitted in the Jones murder as were submitted in the Ransom murder and again the jury found only one unspecified mitigating circumstance.
This case involves a murder to eliminate a possible witness against the defendant. In State v. Maynard, 311 N.C. 1, 316 S.E. 2d 197 (1984); State v. Lawson, 310 N.C. 632, 314 S.E. 2d 493 (1984), cert. denied, 471 U.S. 1120, 86 L.Ed. 2d 267 (1985); State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983); and State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907, 65 L.Ed. 2d 1137 (1980), juries imposed death penalties in cases involving witness elimination, which were affirmed by this Court. In State v. Pridgen, 313 N.C. 80, 326 S.E. 2d 618 (1985) and State v. Crawford, 301 N.C. 212, 270 S.E. 2d 102 (1980), the juries recommended life sentences in cases involving witness elimination. We believe this shows juries have been consistently imposing the death penalty in murder cases involving witness elimination.
In this case, in addition to finding that the defendant had committed the murder to avoid lawful arrest, the jury also found he had previously been convicted of a capital felony. The jury found him guilty of another murder committed six days prior to the murder of Larry Jones. The murder of Larry Jones was calculated. The defendant showed no remorse. The imposition of the death penalty was not disproportionate.
As to the murder of Larry Jones by Henry Lee Hunt, again the same consideration applies to Henry Lee Hunt as to Elwell Barnes. Juries have been consistently returning death sentences in witness elimination murders and this case is more than a witness elimination murder. The defendant had murdered another person six days before he murdered Larry Jones. He showed no remorse for the murder of Larry Jones. The death sentence was not disproportionate.
In the trial of both defendants, we find
No error.
Chief Justice EXUM concurring.
I concur with the majority‘s treatment of all issues in the guilt and sentencing phases of this trial.
If, in the sentencing phase, the Court were addressing the unanimity instruction issue for the first time, I would agree with defendant‘s position that these instructions violate the Eighth Amendment to the federal constitution as that amendment was interpreted in Mills v. Maryland, 486 U.S. 367, 100 L.Ed. 2d 384 (1988), for the reasons stated in my dissenting opinions in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 (1988), and State v. Allen, 323 N.C. 208, 372 S.E. 2d 855 (1988). The majority‘s position on this issue is, as a result of the Court‘s decisions in McKoy and Allen, the law of this state to which I am now bound. For this reason I concur with the majority‘s treatment of this issue.
Justice FRYE dissenting as to sentence.
For the reasons expressed in the Chief Justice‘s dissenting opinions in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 and in