STATE OF NORTH CAROLINA v. PATRICIA WELLS JENNINGS
No. 555A90
IN THE SUPREME COURT
(Filed 4 June 1993)
333 N.C. 579 (1993)
579
Jury § 227 (NCI4th) — first degree murder — jury selection — views on death penalty — contradictory and equivocal responses — excusal for cause The trial court did not err by excusing a prospective juror for cause in a murder prosecution where the prospective juror initially responded to both the prosecutor and the court that she did not have any moral or religious convictions against and could vote for the death penalty; she subsequently responded, upon further questioning by the prosecutor, that she would vote against the death penalty without regard to the evidence and notwithstanding the facts or circumstances; and, upon further questioning by the court, she was unable to affirmatively agree to follow the law and recommend a sentence based on the evidence and the law and felt that she would be trying to find ways to vote against the death penalty and would be predisposed or biased in some respect.
Am Jur 2d, Jury § 290.
Comment note — beliefs regarding capital punishment as disqualifying juror in capital case — post-Witherspoon cases. 39 ALR3d 550.
- Evidence and Witnesses § 2264 (NCI4th) — first degree murder — torture — opinion of pathologist
The trial court did not err in a first degree murder prosecution by admitting the opinion of the forensic pathologist who performed the autopsy that the victim had been tortured. The witness did not testify that defendant tortured the victim; he gave his expert medical opinion about the pattern and types of injuries he observed during the autopsy. The challenged testimony summarized the pattern of injuries and constituted a medical conclusion which the witness was fully qualified to reach. To the extent that the witness also addressed a legal conclusion or standard, the term “torture” is not a legal term of art which carries a specific meaning not readily apparent to the witness.
Am Jur 2d, Expert and Opinion Evidence § 244.
Evidence and Witnesses § 2264 (NCI4th) — first degree murder — sexual assault upon victim — opinion of pathologist The trial court did not err in a murder prosecution by allowing the forensic pathologist who performed the autopsy to testify that there had been a sexual assault upon the victim. The challenged testimony relates back to a pattern of injuries about which the pathologist had testified and constitutes a medical conclusion which he was fully qualified to render. The witness used the term “sexual assault, attack” merely to describe the pattern of injuries and, to the extent that he stated a conclusion, “sexual assault or attack” is not a legal term of art which carries a specific meaning not readily apparent to the witness.
Am Jur 2d, Expert and Opinion Evidence § 244.
- Evidence and Witnesses § 3106 (NCI4th) — first degree murder — corroboration — new evidence — no error
The trial court did not err in a murder prosecution by allowing an emergency room nurse, a medical examiner, and a police detective to testify about statements made to them by three prior witnesses. Although defendant argues that the testimony contained entirely new evidence, the challenged testimony was properly admitted because it tended to strengthen and add weight to the original witness and the testimony was not contradictory.
Am Jur 2d, Witnesses §§ 1001 et seq.
- Evidence and Witnesses § 1081 (NCI4th) – murder — right to remain silent — evidence that right exercised — invited error
Any error in a murder prosecution in the admission of testimony from an officer that defendant had exercised her right to remain silent was invited by defendant where the challenged testimony was elicited by the defense counsel, not the prosecutor, the defense counsel did not object or make a motion to strike, and, although defense counsel innocently broached the subject by asking whether defendant had reviewed her typewritten statement, he persistently continued along that path, repeatedly asking the agent to explain his answers.
Am Jur 2d, Evidence §§ 638 et seq.; Homicide § 339.
- Evidence and Witnesses § 1081 (NCI4th) — murder — testimony that defendant refused to allow search — harmless error
Testimony in a murder prosecution that defendant refused to allow a search of her hotel room and car was harmless error where defendant argued that the evidence attacked her credibility, implied her guilt, and denied her a fair trial, but there was other testimony which suggested that defendant was not trying to hide anything, defendant did not unequivocally refuse the search, and the challenged testimony was but a tiny fraction of the State‘s overall case.
Am Jur 2d, Evidence §§ 638 et seq.; Homicide § 339.
- Evidence and Witnesses § 736 (NCI4th) – murder — statement by magistrate when issuing search warrant — no prejudice
Assuming error in a murder prosecution in admitting testimony that the magistrate, when issuing a search warrant, asked if the officer wanted a warrant for murder, the Supreme Court was not convinced that the jury would probably have reached a different verdict absent the error.
Am Jur 2d, Appeal and Error §§ 797 et seq.
- Evidence and Witnesses § 2068 (NCI4th) — murder — testimony disparaging defendant‘s character — emotions toward victim — admissible
The trial court did not err in a murder prosecution by allowing the victim‘s financial advisor to testify that defendant had wanted part of the victim‘s (her husband‘s) assets transferred to her immediately, that defendant had talked of the victim as if he was not human, that there was no compassion for the victim, and that the victim‘s face turned white. The witness‘s “opinions or inferences” as to the emotions displayed by defendant toward her husband, and her husband‘s responses, manifested by a change in his physical aspect, were rationally based on the witness‘s perceptions and were helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C.G.S. § 8C-1, Rule 701 .
Opinion evidence as to character of accused under Rule 405(a) of Federal Rules of Evidence. 64 ALR Fed. 244.
- Evidence and Witnesses § 2786 (NCI4th) — murder — direct examination — assumption of facts not in evidence — no error
The trial court did not err in a murder prosecution by allowing the prosecutor to ask a pathologist whether three wounds on the victim‘s body could have been caused by a sharp object such as a hypodermic needle being moved around and rotated. Although defendant argued that this question assumed facts not in evidence, there had been prior testimony that a hypodermic needle was found inside defendant‘s cosmetic bag.
Am Jur 2d, Witnesses § 750.
- Evidence and Witnesses § 2797 (NCI4th) – murder — cross-examination — allegedly impertinent and insulting — no error
There was no error in a murder prosecution where defendant contended that the prosecutor continually interrupted her during cross-examination and attempted to humiliate her by asking impertinent and insulting questions. Counsel generally have wide latitude on cross-examination to test matters related by the witness on direct examination, subject to the discretion of the trial court and the requirement that the questions be asked in good faith. While the record discloses a vigorous cross-examination, it does not disclose that the prosecutor asked the questions in bad faith.
Am Jur 2d, Witnesses §§ 743, 744, 852.
Privilege of witnesses to refuse to give answers tending to disgrace or degrade him or his family. 88 ALR3d 304.
- Evidence and Witnesses § 788 (NCI4th) — murder — testimony of paramedic concerning deceased — lack of medical qualifications — other testimony from medical examiner
There was no prejudice in a murder prosecution in allowing a paramedic to testify that the deceased had been in cardiac arrest for more than 15 minutes when he arrived at the scene, even though defendant contended that the witness was not medically qualified to give this opinion, in light of the
Am Jur 2d, Appeal and Error § 806.
- Evidence and Witnesses §§ 781, 264 (NCI4th) – murder — character of victim — admissible in rebuttal — similar evidence admitted without objection
There was no prejudicial error in a murder prosecution in the admission of testimony about the victim‘s good character where some of the evidence was properly admitted under
N.C.G.S. § 8C-1, Rule 404(a) to rebut prior evidence elicited by defendant upon cross-examination that the victim suffered from dementia and that he displayed behavior characteristic of dementia. As to the general good character evidence, similar evidence was admitted without objection.Am Jur 2d, Appeal and Error § 806; Evidence §§ 339 et seq.
- Evidence and Witnesses § 2633 (NCI4th) – murder — conversation between defendant and a judge — not privileged
There was no error in a murder prosecution where the prosecutor was allowed to question both the defendant and a judge, who had known the victim for thirty years, about a conversation in which defendant asked the judge how closely doctors performing an autopsy could come in determining how long a person had been dead. The record establishes that the judge was actively serving when the communication in question was made, so that he was prohibited from practicing law, and defendant could not establish an attorney-client relationship.
Am Jur 2d, Witnesses § 386.
- Criminal Law § 720 (NCI4th) – murder — three lines omitted from Pattern Jury Instruction — subsequently corrected — harmless error
There was harmless error in a first degree murder prosecution in the omission from the jury charge of one of the five essential elements of first degree murder and in giving the definition of deliberation under the heading of premeditation where the court immediately discovered its error, promptly and expressly retracted it, recharged the jury on all five elements of first degree murder, and subsequently restated all five elements when the jury requested clarification. Fur-
Am Jur 2d, Appeal and Error § 817; Trial §§ 1478-1481.
- Homicide § 480 (NCI4th) — murder — instructions — use of deadly weapon — cowboy boots
The trial court did not err in a murder prosecution by giving a deadly weapon instruction to the jury where the evidence was that defendant had kicked or stomped the victim in the abdomen while wearing cowboy boots. Any article, instrument or substance likely to produce death or great bodily harm is a deadly weapon; thus, cowboy boots may be a deadly weapon when worn to kick or stomp an elderly man.
Am Jur 2d, Homicide § 506.
Kicking as aggravated assault or assault with dangerous or deadly weapon. 33 ALR3d 922.
- Criminal Law § 1339 (NCI4th) — murder — aggravating circumstance — commission of sex offense — no error
There was no plain error in a murder prosecution where the court submitted the aggravating circumstance that the murder was committed while defendant was engaged in the commission of or while attempting to penetrate the anus with an object. Although defendant contended that the court failed to allege the aggravating circumstance in the statutory language of
N.C.G.S. § 15A-2000(e)(5) or that the court omitted a necessary element of the crime of sexual offense in not using the phrase “by force and against the will of the deceased,” defendant concedes that the court properly instructed the jury orally and the trial court has never been required to duplicate the exact statutory language ofN.C.G.S. § 15A-2000(e) on the written list of Issues and Recommendations furnished to the jury. The trial court augmented the written instruction by twice instructing the jury on the form, at which they were looking. The additional or alternative written instructions suggested by defendant would have had no probable effect on the jury‘s response and thus the incomplete written issues sheet did not constitute plain error. Moreover, the evidence presented no issue as to defendant‘s use of force or the victim‘s lack
Am Jur 2d, Criminal Law §§ 598, 599.
- Criminal Law § 1341 (NCI4th) – murder — aggravating circumstance — pecuniary gain
The trial court did not err in a prosecution for the murder of a husband by a wife by instructing the jury on the aggravating circumstance of pecuniary gain. Although defendant contended that the phrase “stood to benefit” sweeps too broadly in that it directs the jury to find this aggravating circumstance on the mere fact that defendant would benefit financially from the death of her husband, even though incidental financial gain will accrue to the surviving spouse of virtually every marriage, the phrase is not overbroad when viewed in the context of the instructions as a whole. Moreover, there was substantial evidence that the murder was committed for pecuniary gain.
Am Jur 2d, Criminal Law §§ 598, 599.
Sufficiency of evidence, for purposes of death penalty, to establish statutory circumstance that murder was committed for pecuniary gain, as consideration or in expectation of receiving something of monetary value, and the like — post-Gregg cases. 66 ALR4th 417.
- Criminal Law § 1348 (NCI4th) — murder — mitigating circumstances — instruction on sympathy or mercy refused — no error
The trial court did not err in a first degree murder prosecution by denying defendant‘s request that it instruct the jury that “you are entitled to base your verdict upon any sympathy or mercy you may have for the defendant that arises from the evidence presented in this case.” The trial court submitted the statutory catch-all mitigating circumstance,
N.C.G.S. § 15A-2000(f)(9) , with the instructions recommended in State v. Hill, 331 N.C. 387 (1992).Am Jur 2d, Criminal Law §§ 598-600.
- Criminal Law § 1320 (NCI4th) – murder — sentencing phase — evidence from guilt phase — victim‘s character
The trial court did not err in the sentencing phase of a murder prosecution when it allowed consideration of evidence of the victim‘s good character introduced during the guilt phase or when it instructed the jury that it could consider all evidence heard at both the guilt and penalty phases. The character evidence was admissible and, pursuant to
N.C.G.S. § 15A-2000(a)(3) , competent for consideration by the jury during the penalty phase. The instruction that the jury could consider all evidence introduced at both phases was appropriate.Am Jur 2d, Trial § 1441.
- Criminal Law § 1344 (NCI4th) — murder — aggravating circumstances — especially heinous, atrocious, cruel — torture
The trial court did not err in a murder prosecution by submitting the aggravating circumstance that the murder was especially heinous, atrocious, or cruel where defendant was convicted on the basis of torture and premeditation and deliberation and the evidence supported both theories.
Am Jur 2d, Criminal Law §§ 598, 599.
Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like — post-Gregg cases. 63 ALR4th 478.
- Criminal Law §§ 1345, 1339 (NCI4th) — murder — aggravating circumstances — especially heinous, atrocious, cruel — sex offense — not based on same evidence
The trial court did not err in a murder prosecution by submitting the aggravating circumstances that the murder was especially heinous, atrocious, or cruel and that it was committed during a sex offense based on the same evidence where there was substantial evidence of the especially heinous, atrocious, or cruel nature of the killing apart from the evidence as to whether the murder was committed while attempting the penetration of the victim‘s anus with an object. While the trial court should have instructed the jury that it could
Am Jur 2d, Criminal Law § 598.
- Homicide § 487 (NCI4th) — first degree murder — torture — premeditation and deliberation — instructions
The trial court did not err in a murder prosecution by instructing jurors that premeditation, deliberation, and intent to kill are not essential elements of first degree murder on the basis of torture.
Am Jur 2d, Homicide § 263.
Sufficiency of evidence, for purposes of death penalty to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like — post-Gregg cases. 63 ALR4th 478.
- Criminal Law § 1323 (NCI4th) — murder — sentencing — weighing of mitigating and aggravating circumstances
The trial court did not err in a murder prosecution by directing the jury on Issue II to continue to Issue IV if the mitigating circumstances are of equal value and weight to the aggravating circumstances.
Am Jur 2d, Criminal Law § 578; Trial § 841.
- Constitutional Law § 370 (NCI4th) — murder — sentencing — aggravating circumstances — especially heinous, atrocious, or cruel
The aggravating circumstance that a murder was especially heinous, atrocious or cruel was not unconstitutionally vague and overbroad as applied in North Carolina and in this case.
Am Jur 2d, Constitutional Law § 818; Criminal Law §§ 17, 598.
Validity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances. 111 L. Ed. 2d 947.
Constitutional Law § 370 (NCI4th) — death penalty — constitutional The North Carolina death penalty statute is not unconstitutionally vague and overbroad, has not been imposed in a discretionary and discriminatory manner, and has not been imposed or withheld on the basis of arbitrary and capricious factors and in individual cases without proper guidance.
Am Jur 2d, Criminal Law §§ 625 et seq.
Supreme Court‘s views on constitutionality of death penalty and procedures under which it is imposed or carried out. 90 L. Ed. 2d 1001.
- Criminal Law § 1326 (NCI4th) — murder — sentencing — mitigating circumstances — burden of proof
The trial court did not err in a murder prosecution by instructing the jury that defendant had the burden of proving mitigating circumstances by a preponderance of the evidence.
Am Jur 2d, Trial § 1291.
- Criminal Law § 1333 (NCI4th) — murder — aggravating circumstances — no bill of particulars
There was no error in a murder prosecution in the denial of defendant‘s motion for a bill of particulars from the State disclosing the statutory aggravating circumstances relied upon in seeking the death penalty.
Am Jur 2d, Pleading §§ 297, 298.
- Criminal Law § 1373 (NCI4th) – murder — death penalty — not disproportionate
A sentence of death in a murder prosecution was not disproportionate or excessive where the record supports the jury‘s finding of the three aggravating circumstances submitted to it, nothing in the record suggests that the sentence was imposed under the influence of passion, prejudice or any other arbitrary factor, and the case involved the murder of a frail and elderly husband by his healthy and much younger wife of less than three years; the murder was preceded by a period of physical and verbal abuse, during which defendant depleted her husband‘s financial resources; the final assault was prolonged and vicious; and defendant never exhibited any remorse for the crime or pity for her victim. The extent of
Am Jur 2d, Criminal Law §§ 609, 628.
Justice FRYE concurring in guilt-innocence phase and dissenting in sentencing phase.
Chief Justice EXUM joins in this concurring and dissenting opinion.
Appeal of right pursuant to
Lacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State.
James R. Parish for defendant-appellant.
WHICHARD, Justice.
Defendant was tried capitally on an indictment charging her with the first-degree murder of her eighty-year-old husband, William Henry Jennings (hereinafter “Jennings“). The jury returned a verdict finding defendant guilty upon the theories of (1) premeditation and deliberation and (2) torture. Following a sentencing proceeding pursuant to
The State presented evidence that Jennings was beaten and tortured to death in a hotel room in Wilson, North Carolina on 19 September 1989. Defendant‘s evidence suggested that Jennings suffered from dementia and died from accidental or self-inflicted wounds.
Defendant was a nurse working at Westwood Manor Nursing Home in Wilson when she first met Jennings in June 1983. Jennings,
Shortly after their marriage in September 1987, defendant and Jennings visited George Henry, a financial consultant at Merrill Lynch and an acquaintance of Jennings for more than twenty years. The purpose, Henry testified, was to transfer half of Jennings’ assets, which then totaled about $150,000, to defendant. An account was opened for defendant, and half of Jennings’ assets were transferred to the new account.
The State presented several witnesses who testified that Jennings told them of ongoing abuse by defendant and that he was afraid defendant would kill him or have him committed to an institution. Among these was Superior Court Judge Knox Jenkins. In May 1989, Jenkins was practicing law in Smithfield. Jennings came to Jenkins’ office to have a will drawn. According to Jenkins’ testimony, Jennings said defendant had physically beaten him, dragged him across the room, and stomped him with her cowboy boots. Jennings told Jenkins defendant had threatened to stomp him to death with her cowboy boots. Jennings also told Jenkins defendant had tried to have him committed. Jenkins testified that Jennings was a frail man physically but was not confused and appeared well oriented. Jenkins had no reservations or doubts about Jennings’ competency. Jennings never returned to Jenkins’ office to sign the legal documents.
On 19 September 1989, defendant and Jennings were staying at the Hampton Inn in Wilson. About 9:30 p.m., defendant called the desk and said she had a “code blue.” The hotel manager called 911, and emergency medical personnel arrived at 9:35 p.m. They found defendant performing CPR on Jennings, who was lying nude on the floor. Paramedic Larry Parnell testified that he asked defendant how long Jennings had been “down.” Defendant, Parnell testified, said Jennings had been down five to ten minutes. When Parnell began doing CPR on Jennings, Jennings’ skin appeared cool and his body seemed generally stiff. Paramedic Lee Fowler testified that when he arrived at the hotel room, defendant was wearing a black nightgown and brown cowboy boots.
Dr. Andrew Price, a Wilson physician and local medical examiner, testified that he examined Jennings’ body at the hospital around 10:30 the night of Jennings’ death. In his opinion, based in part on the fact that Jennings’ body temperature was 86.3 degrees, Jennings had been dead for six to eight hours.
Dr. Page Hudson, forensic pathologist and former Chief Medical Examiner for the State of North Carolina, testified that he performed an autopsy on Jennings on 20 September 1989. Dr. Hudson found multiple bruises and scrapes on various parts of Jennings’ head, scalp, face, neck, legs, arms and hands. All the injuries appeared fresh. There was a large bruise in the mesentery of the abdominal cavity, the tissue which holds in and supports the intestines and contains blood vessels to the intestines. Dr. Hudson opined that a blunt force impact to the abdominal wall caused the tears in the mesentery, and that blood loss from these tears caused the victim‘s death. The injury to the abdomen was not consistent with a fall in the bathtub, Dr. Hudson testified, unless the victim fell from a height of at least twenty feet. The injury was, however, consistent with a kick or stomp to the abdomen.
Additionally, Dr. Hudson found tiny cracks or splits in the thin membrane that lines the anus around the sphincter. The surface of the membrane had been stretched to the point that it cracked. Dr. Hudson testified, further, that the pattern of injuries was not consistent with an injury caused by a rectal thermometer. Dr. Hudson also found injuries to the head of the penis in the form of sharply defined imprints. In his opinion, a pair of forceps found in the hotel room could have caused these wounds. Dr. Hudson examined the forceps and found a small piece of skin consistent with the type found on the underside of the eyelid or the head of the penis. Dr. Hudson also found a laceration on the shaft of the penis, scrapes at the base of the penis, and a scratch on the scrotum. In his opinion, most of Jennings’ injuries were inflicted around the same time, and Jennings had been dead five to ten hours before his body arrived at the emergency room. Based on Jennings’ injuries, Dr. Hudson opined that Jennings had been sexually assaulted and tortured.
Dr. Price, the local medical examiner, testified for the State on rebuttal that certain drugs can cause symptoms similar to those displayed by some persons with dementia. Tests showed high levels of one of these drugs, butalbital, in Jennings’ body.
Detective Teresa Jo Adams of the Wilson Police Department investigated Jennings’ death. She testified that she found a large bloodstain on the carpet of the hotel room, blood on the sheets, and a blood-stained adult‘s diaper2 underneath a pillow. There was also a bloodstain on the underside of a pillowcase.
District Court Judge Allen Harrell, who had known Jennings for about thirty years, testified for the State on rebuttal that defendant called him the day after Jennings’ death and asked how closely doctors could approximate the time of a person‘s death based on autopsy results.
Four expert witnesses testified for defendant that Jennings suffered from dementia. Two, family practitioner Dr. Donald Reece and neurologist Dr. Ashley Kent, examined Jennings prior to his death. Both opined, based on their examinations, that Jennings suffered from dementia. Two others, psychiatrist and attorney Dr. Thomas W. Brown and psychologist John F. Warren III, reviewed Jennings’ medical records and concurred with Drs. Reece and Kent that Jennings suffered from dementia. Dr. Brown testified that this was a “clear case of dementia” and that it is not uncommon for demented patients to injure themselves. After reviewing photographs of Jennings’ injuries, Dr. Brown testified that, in his opinion, all the injuries could have been self-inflicted.
Defendant testified that the next day, 19 September, Jennings again fell hard in the bathtub. She also found him in the bathroom beating himself with a “huge piece of cheese that we‘d been carrying around for a couple of weeks, and it was hard . . . He had [the cheese] in [a] plastic bag, swinging and hitting himself with it.” She also testified she saw Jennings picking his rectum. Later that evening she awoke and found him on the floor. She did not recall telling paramedic Parnell that Jennings had been down five to ten minutes; she did not recall asking Judge Harrell how closely doctors can estimate the time of death from autopsy results; and she denied that she was wearing cowboy boots when paramedics came to the hotel room the night of Jennings’ death.
Defendant moved to dismiss at the close of the State‘s evidence and of all the evidence. The trial court denied the motions. The jury found defendant guilty of first-degree murder based on both torture and premeditation and deliberation.
At the capital sentencing hearing, Dr. Hudson, forensic pathologist and medical examiner, again testified for the State about the nature and extent of Jennings’ injuries. George Henry, Merrill Lynch financial manager, testified again about the extent of Jennings’ holdings, the transfers during the course of Jennings’ marriage to defendant, and the value of the limited partnerships still in Jennings’ account at the time of the trial. Henry also testified that defendant had visited him in October 1989 to talk about Jennings’ intent to transfer the partnerships to her accounts, as evidenced by three letters sent more than a year before to Merrill Lynch. Defendant‘s daughter and son testified about their mother‘s qualities and achievements.
Upon finding that the mitigating circumstances were insufficient to outweigh the aggravating circumstances, and that the aggravating circumstances were sufficiently substantial to call for the death penalty, the jury recommended a sentence of death.
JURY SELECTION ISSUE
[1] Defendant first contends that the trial court erred in excusing a prospective juror for cause because of her views about the death penalty, thereby depriving defendant of her rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 19 and 27 of the North Carolina Constitution. Defendant contends that the prospective juror only voiced general objections to the death penalty, or only expressed conscientious or religious scruples against its infliction. We disagree.
The test for determining whether a prospective juror may be properly excused for cause for his views on the death penalty is whether those views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985); accord, e.g., State v. Davis, 325 N.C. 607, 621-22, 386 S.E.2d 418, 425 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). However, a prospective juror‘s bias may not always be “provable with unmistakable clarity [and,] [i]n such cases, reviewing courts must defer to the trial court‘s judgment concerning whether the prospective juror would be able to follow the law impartially.” Davis, 325 N.C. at 624, 386 S.E.2d at 426. “[M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear‘; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to ar-
Prospective juror Lamm was excused for cause on the motion of the prosecutor only after extensive questioning by the prosecutor, defense counsel, and the court. Pertinent questions and answers follow:
[PROSECUTOR]: [C]ould you return a sentence recommendation of death?
[JUROR LAMM]: I‘d rather not.
[PROSECUTOR]: Are you saying then that you would automatically vote against imposing capital punishment without regard to the evidence as it develops?
[JUROR LAMM]: Yes, sir.
[PROSECUTOR]: I take it then you would not vote in favor of the death penalty under any facts or circumstances no matter how aggravating the case was and no matter what the facts were.
[JUROR LAMM]: I wouldn‘t like to vote death.
[PROSECUTOR]: Are you saying then that you would not vote for death, no matter how aggravating the case was or how or what the facts were, you could not return a sentence recommendation of death?
[JUROR LAMM]: No.
[PROSECUTOR]: If that‘s your conviction, I‘m not trying to change that, I‘m just asking you?
[JUROR LAMM]: Well, I wouldn‘t like to, no.
[PROSECUTOR]: You would not, are you saying that you would not be able to?
[JUROR LAMM]: No.
[PROSECUTOR]: Challenged for cause.
. . . .
THE COURT: . . . [D]o you feel that some persons convicted of first degree murder deserve the death penalty?
[JUROR LAMM]: Yes, if they did it.
THE COURT: Do you feel that there are some persons who are guilty of first degree murder who do not deserve the death penalty?
[JUROR LAMM]: (Pause) Well, yes.
. . . .
THE COURT: . . . [The] Legislature has set out very strict procedures that the jury must follow. . . . [W]ould you be willing to go through those procedures?
[JUROR LAMM]: Yes, sir.
THE COURT: And if you went through those procedures and if you were satisfied that death was the appropriate sentencing in the case, could you vote death, walk back into this Courtroom and announce your verdict?
[JUROR LAMM]: Yes, if I had to.
THE COURT: Do you feel that you would find yourself in a situation whereby you would be trying to find ways that you could not vote for the death penalty?
[JUROR LAMM]: I do feel like that.
THE COURT: That you would be trying to find ways to vote for life imprisonment over death?
[JUROR LAMM]: Yes.
. . . .
THE COURT: Alright, let me sum it up. Do you feel that if you served on this jury and if the trial got to the sentencing phase that you could listen to the evidence and could make your recommendation to me and it would be more than a recommendation, it would really be a sentence. I would simply put it into effect based on what the jury recommended to the Court. . . . [D]o you feel that you could recommend a sentence to the Court based on the evidence you heard and based on the law and that you would not be predisposed one way or the other in your deliberation? Or do you feel that you would be biased in some respect?
[JUROR LAMM]: Probably would.
THE COURT: Probably would what?
[JUROR LAMM]: Be biased in some way.
Lamm‘s contradictory and sometimes equivocal responses illustrate that “determinations of juror bias cannot always be reduced to question-and-answer sessions which obtain results in the manner of a catechism.” Wainwright, 469 U.S. at 424, 83 L. Ed. 2d at 852. Lamm initially responded to both the prosecutor and the court that she did not have any moral or religious convictions against and could vote for the death penalty. However, she subsequently responded, upon further questioning by the prosecutor, that she would vote against the death penalty without regard to the evidence and notwithstanding the facts or circumstances. See, e.g., State v. Quick, 329 N.C. 1, 14, 405 S.E.2d 179, 187 (1991) (prospective juror who stated she could not consider the death penalty no matter how aggravated the case and regardless of the facts properly excused for cause). Upon further questioning by the court, Lamm was unable to affirmatively agree to follow the law and recommend a sentence based on the evidence and the law; rather, she felt that she would be trying to find ways she could vote against the death penalty and would be predisposed or biased in some respect. “A challenge for cause . . . may be made by any party on the ground that the juror . . . [a]s a matter of conscience, regardless of the facts and circumstances, would be unable to render a verdict with respect to the charge in accordance with the law of North Carolina.”
GUILT PHASE ISSUES
. . .
[2] Defendant next contends the trial court erred in allowing Dr. Hudson, forensic pathologist and former Chief Medical Examiner who performed the autopsy, to testify that, in his opinion, Jennings was “tortured.” Defendant argues that because she was charged with first-degree murder on the basis of torture, it was error to admit the testimony because it constituted a relevant legal conclusion or standard. We find no error.
North Carolina Rule of Evidence 704 provides that “[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
Dr. Hudson was tendered by the State and accepted without objection as an expert in the field of forensic pathology. During redirect examination, the following exchange took place:
[PROSECUTOR]: Dr. Hudson, are you familiar with the term torturous type injury?
[DEFENSE COUNSEL]: Objection.
. . . .
[PROSECUTOR]: Dr. Hudson, considering all of the injuries that you observed on the body of William Henry Jennings, do you
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[DR. HUDSON]: I do.
[PROSECUTOR]: What is your opinion?
[DR. HUDSON]: In my opinion, he had been tortured.
Dr. Hudson did not testify that, in his opinion, defendant tortured Jennings; he gave his expert medical opinion about the pattern and types of injuries he observed during the autopsy. Dr. Hudson had previously testified, inter alia, that the bruises to the head, chest, and abdomen were caused by a blunt force, and that the blow to the head may have stunned Jennings. The blood loss occasioned by the blow to the abdomen would cause considerable pain, drowsiness, eventual unconsciousness and death, if unattended. The scrapes and bruises to Jennings’ legs, arms, and buttocks were not received in a fall—there were no graze wounds, skid type marks, concrete or gravel burns. Dr. Hudson testified that in his opinion most of the wounds were fresh, recent, suffered “pretty close to time of death,” and not self-inflicted. Finally, the amount of mucus collected in the lower part of Jennings’ bronchial tubes was “common in persons who die slowly of multiple injuries.” The challenged testimony summarized this pattern of injuries and constituted a medical conclusion which Dr. Hudson, forensic pathologist and Chief Medical Examiner, was fully qualified to reach.
However, to the extent that Dr. Hudson also addressed a legal conclusion or standard, the term “torture” is not a legal term of art which carries a specific meaning not readily apparent to the witness. “Torture” does not denote a criminal offense in North Carolina and therefore does not carry a precise legal definition, as “murder” and “rape” do, involving elements of intent as well as acts. Further, the commonly understood meaning of the term is approximately the same as the instructions the trial court gave the jurors—“inflict[ion of] pain or suffering upon the victim for the purpose of satisfying some untoward propensity.” Cf. Webster‘s Third New International Dictionary 2414 (1976) (torture means the “infliction of intense pain ... to punish or coerce someone“; “torment or agony induced to give sadistic pleasure to the torturer“).
...
[3] Defendant contends that the trial court also erred in allowing Dr. Hudson to testify that there was a “sexual assault” upon the victim. Again, she argues that Dr. Hudson expressed a legal conclusion or standard. Again, we disagree.
The following exchange took place during redirect examination:
[PROSECUTOR]: Dr. Hudson, the injuries that you‘ve described for the jury, do you have an opinion as to whether or not they would have been inflicted at different times or if they are pretty much all the same age?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[DR. HUDSON]: I do.
[PROSECUTOR]: And what is your opinion?
[DR. HUDSON]: The great bulk of the injuries in my opinion occurred about the same time. That is, they were all fairly fresh, fairly recent injuries. They were all pretty close to the time of death. The exceptions, I think, were few.
[PROSECUTOR]: [Is it] possible that these—that all of these injuries would have been sustained in a fall?
...
[DR. HUDSON]: No, sir, my opinion is that these injuries were not received in a fall.
[PROSECUTOR]: Why do you say that, sir?
...
[DR. HUDSON]: I‘ve seen a wide variety of injuries in a wide variety of people over many years, and I don‘t recall any—any kind of fall that would even approach this pattern.
Because one has to consider not only the individual injuries in their size and shape and location but one has to consider them all together and this pattern simply does not fit with a—with a fall.
...
[DR. HUDSON]: In my opinion, this pattern of injuries fits with assault, attack.
[DEFENSE COUNSEL]: Move to strike.
THE COURT: Denied.
[PROSECUTOR]: What about the anal injuries, sir?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[DR. HUDSON]: I‘m considering all the anal injuries and the injuries to the genital area, rather all the injuries together as part of an assault. To me there‘s a sexual assault as well as a generalized assault.
Dr. Hudson had previously testified that in his opinion insertion of a blunt instrument caused the injuries to Jennings’ anus, and that a forceps could have caused the injury to the head of the penis. The challenged testimony relates back to this pattern of injuries and constitutes a medical conclusion Dr. Hudson was fully qualified to render. Dr. Hudson used the term “sexual assault, attack” merely to describe the pattern of injuries. Again, and to the extent that Dr. Hudson stated a legal conclusion, “sexual assault or attack” is not a legal term of art which carries a specific meaning not readily apparent to the witness. Like “torture,” “sexual assault” does not carry a precise legal definition involving elements of intent as well as acts, nor does it have a legal meaning that varies from the common understanding of the term. We thus hold that the trial court did not err by allowing this testimony to assist the jury in understanding the nature of Jennings’ injuries. This assignment of error is overruled.
[4] Defendant next contends that the trial court erred by allowing into evidence otherwise non-admissible testimony under the guise of corroboration. Specifically, defendant contends that three witnesses—emergency room nurse Pearl Chandler, medical examiner Dr. Price, and Wilson police detective Adams—testified about statements made to them by three prior witnesses—paramedic Lee Fowler, nurse Frances Dineen, and Dr. Price, respectively. In each case, defendant argues, the witness’ testimony contained
...
It is well settled that “[t]o be admissible as corroborative evidence, prior consistent statements must corroborate the witness’ testimony, ... but the corroborative testimony may contain ‘new or additional information when it tends to strengthen and add credibility to the testimony which it corroborates.‘” State v. Howard, 320 N.C. 718, 724, 360 S.E.2d 790, 794 (1987) (citation omitted) (emphasis added) (quoting State v. Kennedy, 320 N.C. 20, 35, 357 S.E.2d 359, 368 (1987)); see also State v. McDowell, 329 N.C. 363, 384-85, 407 S.E.2d 200, 212 (1991); State v. Coffey, 326 N.C. 268, 293, 389 S.E.2d 48, 63 (1990); State v. Ramey, 318 N.C. 457, 468-70, 349 S.E.2d 566, 573-74 (1986). The State cannot, however, introduce prior statements which “‘actually directly contradict[] ... sworn testimony.‘” McDowell, 329 N.C. at 384, 407 S.E.2d at 212 (quoting State v. Burton, 322 N.C. 447, 451, 368 S.E.2d 630, 632 (1988)).
We agree with the State that the challenged testimony of each of the three witnesses was properly admitted because each tended to strengthen and add weight to the original witness and the testimony was not contradictory. For example, although paramedic Fowler did not testify that he said, “something‘s not right, something‘s not right,” when he entered the emergency room, he did testify that he thought there were many “unusual” circumstances about this case. Indeed, Fowler testified that he reported his observations to the “charge nurse” in the emergency room, which is required in situations where a paramedic believes something is amiss. Nurse Chandler‘s testimony, therefore, like that of each of the challenged witnesses, was properly admitted to corroborate testimony of a prior witness. This assignment of error is overruled.
[5] Defendant next contends the trial court erred by allowing S.B.I. Agent Tim Thayer to comment on defendant‘s decision after her arrest to exercise her constitutional right to remain silent. During his cross-examination of Agent Thayer, defense counsel questioned Thayer as to the procedure used in obtaining a statement from defendant prior to her arrest. Defendant brings to our
[DEFENSE COUNSEL]: Was [defendant‘s] typewritten statement reviewed with Mrs. Jennings to determine whether or not that was exactly correct?
[AGENT THAYER]: No, [by] the time it was returned to me, she had already been placed in jail and she refused to speak further with us[;] I couldn‘t go over anything with her.
[DEFENSE COUNSEL]: When you say refused to speak, is that a police term for invoking her right not to make a statement?
[AGENT THAYER]: That‘s correct.
[DEFENSE COUNSEL]: That is, she declined to make a statement, isn‘t that correct?
[AGENT THAYER]: Refused is the same thing, she would not talk to us.
...
[DEFENSE COUNSEL]: Did you verify the statement with her and I‘m talking about the typewritten statement?
[AGENT THAYER]: As I explained to you just a minute ago, she at that point when the statement was typed, she was incarcerated and she refused to make any further statements.
[DEFENSE COUNSEL]: Or she declined to make any further statements?
[AGENT THAYER]: The same words mean the same basically.
[DEFENSE COUNSEL]: But Mr. Thayer they are your words, aren‘t they?
[AGENT THAYER]: Which words are those?
[DEFENSE COUNSEL]: The words reviewed, the words claimed, the words—
[AGENT THAYER]: She would not make a statement, refused, declined, she would not make a statement.
[DEFENSE COUNSEL]: Is there any law against her making a statement or not making a statement?
The State responds that any error was invited by defendant, and hence she cannot complain on appeal. We agree.
The law is clear that a defendant cannot be penalized for exercising her constitutional right to remain silent. Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976); Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106 (1965); State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989); State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980); State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974). In Castor, we held that “[a]dverse comments on a defendant‘s failure to testify at trial are impermissible under North Carolina law, Constitution of North Carolina, Article I, Section 23,
The law is equally clear, however, that “[a] defendant is not prejudiced ... by error resulting from his own conduct.”
[6] Defendant next argues the trial court erred by allowing two police officers to testify that defendant refused to allow a search of her hotel room and car. The officers subsequently obtained a search warrant. Defendant argues that she should not be penalized for exercising her constitutional right to refuse a warrantless search. The State, at oral argument, candidly acknowledged that it was “not proper to allow this sort of evidence as evidence of guilt,”
While it was error to allow this testimony as evidence of guilt, we hold the testimony harmless beyond a reasonable doubt. See
[7] Defendant next argues she is entitled to a new trial because, while testifying about how she obtained a search warrant, Detective Adams made the following statement:
I asked [Magistrate] Doug Stewart to please give me a search warrant and I drew up an application for a search warrant ... and at that time Doug Stewart asked me if I wanted a warrant for murder, and I told him, no.
Defendant argues that the italicized portion of the statement was inadmissible hearsay which expressed an opinion as to defendant‘s guilt. The State responds that the challenged statement is not
Defendant failed to object to the statement and our review is therefore limited to consideration of whether its admission constituted plain error. Assuming error, arguendo, we are not convinced that, absent the error, the jury probably would have reached a different verdict. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). This assignment of error is without merit.
[8] Defendant next contends that testimony from Merrill Lynch financial advisor George Henry, who disparaged her character, was unresponsive, irrelevant, and prejudicial, contrary to Rules 404, 405 and 608 of the North Carolina Rules of Evidence. For example, in response to questioning about a meeting between defendant, Jennings and Henry, Henry testified that defendant wanted part of Jennings’ assets to be transferred to her immediately. When asked what defendant said, Henry testified:
[HENRY]: And that is, and I can‘t remember the words so much as it was the way the words were delivered, and she was talking to him as if he was not even a human being.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[HENRY]: Her face, her eyes, her tone, was something like I had never seen before in my life.
[DEFENSE COUNSEL]: Motion to strike.
THE COURT: Denied.
Later, describing Jennings’ reaction to defendant‘s demeanor at the meeting, Henry testified:
Bill‘s face turned right white. I was shocked, it was not vulgar, it was not the loudness, I mean it was the—just absolutely no compassion whatsoever for her husband.
We hold that this and other similarly challenged testimony was admissible under Rule 701, which states:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
[9] Defendant next argues she was denied a fair trial because the prosecutor assumed facts not in evidence during his direct examination of Dr. Hudson. The prosecutor asked Dr. Hudson whether three wounds on the victim‘s body could have been made by a sharp object such as a hypodermic needle being moved around and rotated. Dr. Hudson, over objection, answered that they could have been. Defendant argues that this question assumed facts not in evidence. Prior to Dr. Hudson‘s testimony, however, Detective Adams testified that a hypodermic needle was found inside defendant‘s cosmetic bag at the hotel room. Defendant‘s argument thus is without merit.
[10] Defendant further contends that the prosecutor continually interrupted her during cross-examination and attempted to humiliate her by asking impertinent and insulting questions. The following exchange is typical:
[PROSECUTION, MR. JOSEPHS]: No grass, grit, dirt, or other debris was on the body, was it?
[DEFENDANT]: I don‘t know what those marks on his buttocks are. They look like gravel marks.
[PROSECUTION]: You were in Court all last week, weren‘t you?
[DEFENSE COUNSEL]: Objection, your Honor. We‘ll stipulate that we were in Court all last week and two weeks before
THE COURT: Ask the next question, Mr. Josephs.
...
[PROSECUTION]: Was that good grounds to abandon him and go sit in the car?
[DEFENDANT]: He wasn‘t abandoned. I was—
[PROSECUTION]: Did you call anybody?
...
[PROSECUTION]: I‘m asking you about one thing and one thing only, ma‘am, the canine behavior.
[DEFENSE COUNSEL]: Objection, Your Honor. Your Honor, we object to the District Attorney directing his whatever you call it, animus or attitude at the witness. If he has any problems with the witness asking a question, we would ask the Court to instruct the witness appropriately and then let‘s move to the next question.
[PROSECUTION]: Your Honor, she‘s not answering my questions. I‘m repeating the question.
THE COURT: All right. Let‘s take a deep breath and start over. Let me sit back down. Ask it again Mr. Josephs.
Counsel generally have wide latitude on cross-examination to test matters related by the witness on direct examination, subject to the discretion of the trial court and the requirement that the questions be asked in good faith. See, e.g., State v. Warren, 327 N.C. 364, 373, 395 S.E.2d 116, 121-22 (1990). Further, the questions asked by the State “are deemed proper unless the record discloses that the questions were asked in bad faith.” Id.; see also State v. Garner, 330 N.C. 273, 291, 410 S.E.2d 861, 870 (1991). While the record discloses a vigorous cross-examination, it does not disclose that the prosecutor asked the questions in bad faith. We thus hold that the prosecutor‘s cross-examination did not deny defendant a fair trial. Cf. State v. Britt, 288 N.C. 699, 712-13, 220 S.E.2d 283, 292 (1975) (defendant denied a fair trial when the prosecutor placed before the jury “inadmissible and prejudicial matter,” in-
[11] Defendant next contends that the trial court erred by allowing paramedic Fowler to testify that the deceased had been in cardiac arrest for “more than fifteen minutes” when Fowler arrived at the scene. Fowler, she argues, was not medically qualified to give this opinion, and this evidence was prejudicial because it directly contradicted her statement that she called the paramedics as soon as she discovered her husband on the floor.
Assuming, without deciding, that Fowler was not qualified to give this opinion, there is no reasonable possibility that improper admission of the opinion could have prejudiced defendant, in light of the similar, more damning testimony by Drs. Price and Hudson that the deceased had been dead for five to ten hours by the time Dr. Price examined the body at 10:30 p.m. Defendant does not dispute that Drs. Price and Hudson, the county medical examiner and the pathologist who performed the autopsy, respectively, were qualified to give this testimony or that their testimony was properly admitted. This assignment of error is overruled.
[12] Defendant next contends the trial court erred by allowing four witnesses to testify about Jennings’ good character, contrary to
Rule 404(a) states, in pertinent part:
(a) Character Evidence Generally—Evidence of a person‘s character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
...
(2) Character of victim—Evidence of a pertinent trait of character of the victim of a crime offered by an accused, or by the prosecution to rebut the same ....
We conclude that Nurse Roseboro‘s assessment of Jennings’ behavior as a patient in 1989 was properly admitted under Rule 404(a)(2) to rebut prior evidence, elicited by defendant upon cross-examination of Drs. Hudson and Price, that Jennings suffered from dementia and that he displayed behavior characteristic of dementia. Both the prosecution and the defense questioned Dr. Hudson about dementia. Defendant asked Dr. Price further whether he had been told that Jennings was confused at times and would wander around naked—apparently not to impeach Dr. Price, but to introduce additional evidence that Jennings suffered from dementia and was, at times, dangerous to himself. Defendant maintained that the injuries Jennings sustained prior to death were accidental or self-inflicted.
As to the general good character evidence that Jennings was a nice old gentleman and a reformed alcoholic who helped everyone, we apply the rule of waiver and conclude that, assuming timely objections to all this evidence, defendant lost the benefit of these objections because similar evidence was theretofore and thereafter
[13] Defendant next contends the trial court erred by allowing the prosecutor to question both defendant and Judge Harrell about a conversation between them because that conversation was protected by the attorney-client privilege which only defendant could waive. Defendant also contends the trial court erred by refusing to allow her to testify on voir dire concerning the existence of an attorney-client relationship between herself and Judge Harrell.
Defendant was asked, over objection, whether she had asked Judge Harrell, “How close can they come in an autopsy to pinning down the time of death?” She replied that she did not remember asking this question. Judge Harrell testified for the State on rebuttal. He said he had known the deceased for close to thirty years and that he also knew defendant. Judge Harrell testified that on the day after Jennings’ death, defendant telephoned him. After exchanging pleasantries, defendant told him about Jennings’ death. Defendant then asked “how closely an autopsy—rather the doctors performing the autopsy, how closely they could come in determining how long a person had been dead.” Judge Harrell testified that he did not give defendant legal advice: “[S]he didn‘t seem to be asking for legal advice, what I would have thought was medical advice of some kind.”
A communication is covered by the attorney-client privilege if it has been “made in the course of seeking or giving legal advice for a proper purpose.” 1 Brandis on Evidence § 62 at 302. The record establishes, and we can take judicial notice of the fact that, when the communication in question was made, Harrell was actively
[14] Defendant next contends the trial court erred by omitting, in its jury charge, one of the five essential elements of first-degree murder on the basis of malice, premeditation and deliberation. The State responds that the error was corrected prior to the beginning of jury deliberations and therefore defendant cannot show prejudice. We agree.
In its initial charge, the trial court overlooked three lines of the Pattern Jury Instructions and gave the definition of “deliberation” under the heading of “premeditation.” At the conclusion of the charge, the court sent the jurors out to select a foreman, with specific instructions not to begin deliberations until the court sent in the verdict sheet. It then asked counsel for any requests for corrections to the charge, and counsel for defendant brought the error to the court‘s attention. Four minutes after the court sent the jurors out, it summoned them back to the courtroom and told them it had incorrectly instructed that the State must prove four things in order to convict for first-degree murder on the basis of malice, premeditation and deliberation; instead, the court said, the State must prove five things to convict. The court then instructed, correctly, on the five elements. Approximately two and one-half hours later, the jurors asked the court in writing to reinstruct them on the five elements of first-degree murder on the basis of malice, premeditation and deliberation: “What are the five points that the State has to prove for first-degree murder—premeditated, malice, deliberation?” The court thereupon recited the full charge on first-degree murder, tracking the North Carolina Pattern Jury Instructions. See N.C.P.I. — Crim. 206.10, at 4-6 (1989).
Since a correct charge is a fundamental right of every accused, it must appear with reasonable certainty in any case—especially in one involving a capital offense—that the court‘s error ... was corrected, its harmful effect entirely removed, and the correct rule clearly fixed in the minds of the jury in order for the conviction to stand.
State v. Orr, 260 N.C. 177, 181, 132 S.E.2d 334, 337 (1963). Here, the trial court immediately discovered its error, promptly and expressly retracted it, and recharged the jury on all five elements of first-degree murder, not just premeditation and deliberation. Further, the court subsequently restated all five elements when the jury requested clarification. Further still, the jurors requested that the court reinstruct on the five points and specifically mentioned premeditation and deliberation. It appears clear that the correct rule was fixed in the minds of the jurors. We are convinced that the prompt and complete correction of the erroneous instruction rendered that error harmless. See id. at 182, 132 S.E.2d at 338 (“Surely the trial court has power to correct an inadvertence, especially if the discovery is immediate and the correction prompt and complete.“). This assignment of error is overruled.
[15] Defendant next argues that the trial court erred by giving the following “deadly weapon” instruction to the jury, over defendant‘s objection:
[A] murder can occur with or without a deadly weapon. I instruct you that if the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused his death, you may infer: first, that the killing was unlawful, and second, that it was done with malice. But you are not required or compelled to make this inference, but you may if you find beyond a reasonable doubt that the murder occurred with a deadly weapon.
A deadly weapon, ladies and gentlemen, is a weapon which is likely to cause death or serious injury. In determining whether any instrument involved was a deadly weapon, you should consider its nature, the manner in which it was used, the
size, the strength or the age difference of the defendant as compared to the victim.
Defendant contends there was insufficient evidence that a deadly weapon was used, and that this instruction was therefore inappropriate.
The State responds that its theory of the case was that defendant kicked or stomped Jennings in the abdomen while wearing her cowboy boots. Superior Court Judge Knox Jenkins testified that Jennings had told him defendant had threatened to stomp him to death with her cowboy boots. Paramedic Fowler testified that defendant was wearing a nightgown and cowboy boots when the emergency team arrived at the motel room. These boots were introduced into evidence; the jurors could observe the shape and hardness of each toe and sole. Dr. Hudson, the forensic pathologist who performed the autopsy, testified that Jennings died as a result of blood loss from the tear in the mesentery due to blunt force injury to the abdomen “consistent with a kick or a stomp.” Dr. Hudson‘s testimony tied the boots to Jennings’ death.
We have stated:
An instrument ... may be deadly or not, according to the mode of using it, or the subject on which it is used. For example, in a fight between men, the fist or foot would not, generally, be regarded as endangering life or limb. But it is manifest, that a wilful blow with the fist of a strong man, on the head of an infant, or the stamping on its chest, producing death, would import malice from the nature of the injury, likely to ensue.
State v. West, 51 N.C. 505, 509 (1859). See also State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981) (“any article, instrument or substance which is likely to produce death or great bodily harm” is a deadly weapon). Thus, cowboy boots, when worn to kick or stomp an elderly man, may be a deadly weapon. The evidence here was sufficient to support the “deadly weapon” instruction. This assignment of error is overruled.
In the guilt-innocence phase, we conclude that defendant received a fair trial, free from prejudicial error.
The trial court submitted three aggravating circumstances: that the murder was committed while the defendant was committing or attempting to commit a sex offense,
[16] Defendant contends that the trial court committed plain error in submitting the aggravating circumstance that the murder was committed while defendant was engaged in the commission of or while attempting the penetration of the anus with an object, in that the court failed to allege the aggravating circumstance in the statutory language of
Defendant failed to object to the wording of the written list and review is therefore limited to determining whether the omission constituted plain error. We discern no plain error.
(e) Aggravating circumstances which may be considered shall be limited to the following:
...
(5) The capital felony was committed while the defendant was engaged ... in the commission of, or an attempt to commit ... a sex offense.
The following are the aggravating circumstances which might be applicable to this case. All right, you may now refer to about middle way down the front page where it says, number one.
One, was this murder committed by the defendant—let me read it from the verdict sheet. “Was the murder committed while the defendant was engaged in the commission of or while attempting the penetration of the anus with an object?”
That is, was it committed while the defendant was committing or attempting to commit a sexual offense.
Now, ladies and gentlemen, a sexual offense involves the penetration of the victim‘s anus by force or by the threat of force and was sufficient to overcome any resistance which
the victim might make, and that the victim did not consent, and it was against his will. If you find from the evidence beyond a reasonable doubt that when the defendant killed the victim the defendant had committed or had attempted to commit a sexual act with the victim and that she did so by force or threat of force, and was sufficient to overcome any resistance which the victim might make, and that the victim did not consent and it was against his will, you would find this aggravating circumstance ....
The trial court, however, furnished the jury with a written list that asked simply, “Was the murder committed while the defendant was engaged in the commission of or while attempting the penetration of the anus with an object?” Apparently, the trial court abstracted the statutory language of only the sexual act and not the sexual offense onto the written list. See
Defendant notes, correctly, that we have never required that the trial court duplicate the exact statutory language of
the judge shall include in his instructions to the jury that it must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) which may be supported by the evidence, and shall furnish to the jury a written list of issues relating to such aggravating or mitigating circumstance or circumstances.
We are convinced, however, that the additional or alternative written instructions now suggested by defendant would have had
To enable you to follow me more easily the bailiff will now give each of you a copy of this form ... which you will take with you when you retire to deliberate. ... [D]o not read ahead on this form, but simply refer to this form as I instruct you on the law.
The trial court then twice instructed the jury that to affirmatively answer the question on the form—at which they were looking—they must find that the defendant penetrated Jennings’ anus “by force or threat of force, ... sufficient to overcome any resistance which the victim might make, and that the victim did not consent and it was against his will.” We are convinced that the trial court, augmenting thus the written instructions, fixed the correct law in the minds of the jurors. Orr, 260 N.C. at 181, 132 S.E.2d at 337 (“Since a correct charge is a fundamental right of every accused, it must appear with reasonable certainty in any case ... that the court‘s error ... was corrected, its harmful effect entirely removed, and the correct rule clearly fixed in the minds of the jury ....“). We presume “that jurors ... attend closely the particular language of the trial court‘s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.” Francis v. Franklin, 471 U.S. 307, 324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985).
The evidence tends to show that Jennings suffered multiple scrapes, cuts and bruises to his head, scalp, face, arms, hands, legs, chest, buttocks and genitalia, as well as to his anus, all in the day before his death. Dr. Hudson, the pathologist who performed the autopsy, opined that the splits in the thin membrane that lined the anus around Jennings’ sphincter were caused by
insertion of a blunt object into the anus that stretched the surface of the membrane to the point it split. The splits were not caused by insertion of a rectal thermometer, or picking or scratching by fingernails, or constipation. Jennings, Dr. Hudson opined, would have suffered pain, notwithstanding the quantity of analgesic in his body.
Defendant did not attempt to establish that she penetrated Jennings’ anus with his consent. Rather, her defense, presented by her own testimony and testimony of her experts, was innocence. Jennings, defendant testified, had been depressed and had remained in his motel room the day before his death; she had watched him and cared for him. However, she had found him in the bathroom beating himself with a shoe and a piece of old cheese. Jennings had also been constipated and had picked and scratched at his rectum, and had, in fact, bled profusely from his rectum the day of his death. Dr. Brown, a psychiatrist and an attorney, testified that it is not uncommon for demented patients to injure themselves. After viewing photographs of the injuries, he opined that the injuries could have been self-inflicted.
The evidence thus presented no issue as to defendant‘s use of force or the victim‘s lack of consent, but called for a determination as to the credibility of the State‘s witnesses versus that of defendant‘s witnesses. The jury‘s finding of the aggravating circumstance, even as worded on the written list of Issues and Recommendations, shows that it did not believe the defendant.
For these reasons, we hold that the trial court did not commit plain error in failing to furnish the jury with the additional or alternative written material that defense counsel did not request at trial.
Within this same assignment of error, defendant contends that the evidence did not support the existence of this aggravating circumstance. We conclude that the evidence set forth above, and reasonable inferences therefrom, support a finding that the defendant committed the murder while she was engaged in the commission of, or while attempting the penetration of, Jennings’ anus with an object by force and against his will. See generally State v. Syriani, 333 N.C. 350, 392, 428 S.E.2d 118, 141 (1993) (“In determin
[17] Defendant‘s next assignment of error involves the trial court‘s instructions on the pecuniary gain aggravating circumstance,
The trial court instructed the jury as follows:
A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for having committed the crime, or as a result of the death of the victim.
If you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant stood to benefit from the remaining partnership accounts at the Merrill Lynch in the name of the decedent, you would find this aggravating circumstance, and would so indicate by having your foreman write, “Yes“, in the space after this aggravating circumstance on the form. If you do not so find or have reasonable doubt as to one or more of these things, you will not find this aggravating circumstance and will so indicate by having your foreman write, “No“, in that space.
(Emphasis added). See N.C.P.I. — Crim. 150.10, at 14-15 (1992).
Defendant contends that the italicized language renders the aggravating circumstance constitutionally defective because it does not “narrow the class of murderers subject to capital punishment” in that incidental financial gain will accrue to the surviving spouse of virtually every marriage. See Gregg v. Georgia, 428 U.S. 153, 187 & 196, 49 L. Ed. 2d 859, 882 & 887-88 (1976) (the death penalty is an “extreme sanction, suitable to the most extreme of crimes“; a state can act to “narrow the class of murderers subject to capital punishment by specifying aggravating circumstances which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed.“). The instruction, she argues, does not require that defendant kill the victim for the purpose of obtaining money; rather, it allows the jury to find the aggravating circumstance if defendant stood to gain financially by her husband‘s
Defendant claims, essentially, that the instruction is ambiguous and therefore subject to an erroneous interpretation. In reviewing such an instruction, we inquire ” ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 116 L. Ed. 2d 385, 399 (1991) (quoting Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 329 (1990)). To satisfy this “reasonable likelihood” standard, a defendant must show more than a “possibility” that the jury applied the instruction in an unconstitutional manner, but need not establish that the jury was “more likely than not” to have misapplied the instruction. Boyde, 494 U.S. at 380, 108 L. Ed. 2d at 329.
[A] capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This “reasonable likelihood” standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical “reasonable” jury could or might have interpreted the instruction. There is, of course, a strong policy in favor of accurate determination of the appropriate sentence in a capital case, but there is an equally strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation. Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.
Id. at 380-81, 108 L. Ed. 2d at 329.
The gravamen of the pecuniary gain aggravating circumstance is that “the killing was for the purpose of getting money or something of value.” State v. Gardner, 311 N.C. 489, 513, 319 S.E.2d 591, 606 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985); see also State v. Oliver, 302 N.C. 28, 62, 274 S.E.2d 183, 204 (1981) (“[t]he hope of pecuniary gain provided the impetus for the murder“). This financial motivation or impetus “aggravates” the murder, distinguishing the murder from other murders as being more
The State responds that when read in conjunction with the first paragraph, and in the context of the trial record, the instruction is not constitutionally infirm. See Estelle v. McGuire, 502 U.S. at 399 (the instruction must be considered, not in “artificial isolation,” but in the context of the instructions as a whole and the trial record) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 38 L. Ed. 2d 368, 373 (1973)); see also State v. McNeil, 327 N.C. 388, 392, 395 S.E.2d 106, 109 (1990) (single instruction “must be viewed in the context of the overall charge“), cert. denied, 499 U.S. 942, 113 L. Ed. 2d 459 (1991). We agree.
“Stands,” as in “stands to benefit,” means “to be in a position to gain or lose because of an action taken or commitment made.” Webster‘s Third New International Dictionary 2223 (1976) (emphasis added). The first paragraph of the instruction requires the jury to find that at the time when defendant committed the murder, she intended or expected to obtain money or something of value as a result:
A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for having committed the crime, or as a result of the death of the victim.
(Emphasis added). We conclude that the language of the second paragraph, including the phrase “stood to benefit,” viewed in the context of the instructions as a whole, is not unconstitutionally vague or overbroad.
There was, moreover, substantial evidence before the jury tending to show that the murder of the aged and vulnerable Jennings was committed for the purpose of pecuniary gain. Jennings, who was almost eighty years old at the time of his death, was thirty-three
At the beginning of September 1987, Jennings’ account with Merrill Lynch contained approximately $170,000. During that month, $20,000 was withdrawn from the account, with the checks written to defendant. In addition, certificates of deposit in the amounts of $2,000 and $1,000 were transferred to defendant around that time. Thus, by the time defendant and the victim met with Merrill Lynch advisor George Henry in September 1987, Jennings’ assets amounted to only $150,000. As a result of that meeting, almost one-half of that amount was transferred to defendant‘s account. One month later, Jennings’ account was depleted by approximately $17,000 for a car for defendant. Credit card charges for motel bills and other expenses further depleted Jennings’ account. Defendant‘s account during this period was dormant.
Two months later, Jennings informed Henry that his wife had abandoned him with no money at a hotel and that he wished to cease transferring funds to her account. Shortly thereafter, the couple reconciled, and the defendant succeeded in having Jennings give her power of attorney. Two weeks later Jennings, with the assistance of an attorney, rescinded the power of attorney because defendant “was taking everything that he had.” One year after their marriage, only $37,000 remained in Jennings’ account with Merrill Lynch. At the time of his death, Jennings had only $21,000 in his account. Henry testified that he had received three letters purportedly signed by Jennings requesting that the remaining assets be transferred to defendant. The assets were not transferred because Merrill Lynch refused to transfer any more funds from Jennings to defendant. Defendant claimed that she did not have to kill Jennings because she had power of attorney and could have effected the transfer at any time before Jennings’ death; she did not have to rely on the transfer of all his property to her under his will. However, Henry testified that Merrill Lynch had informed defendant that it would make transfers only if (1) Jennings wrote a letter requesting that the accounts be transferred to his new broker, or (2) Jennings completed a form requesting that the accounts, mostly
Within this same assignment of error, defendant contends that the evidence did not support the existence of this aggravating circumstance. We conclude that the evidence noted above, and reasonable inferences therefrom, support a finding that the defendant committed the murder for pecuniary gain. Cf., e.g., State v. Barfield, 298 N.C. 306, 311-12, 259 S.E.2d 510, 519-20 (1979) (record supported jury‘s finding that defendant poisoned her boyfriend for pecuniary gain where defendant was afraid he would turn her in for forging checks to his account in the amounts of $100, $300 and $95), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980), reh‘g denied, 448 U.S. 918, 65 L. Ed. 2d 1181 (1980). This assignment of error is overruled.
[18] Defendant next contends that the trial court erred by denying her request that it instruct the jury “you are entitled to base your verdict upon any sympathy or mercy you may have for the defendant that arises from the evidence presented in this case,” thereby depriving her of rights under the Eighth and Fourteenth Amendments of the United States Constitution. We have recently addressed and rejected the same argument in State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, 507 U.S. 924, 122 L. Ed. 2d 684 (1993). We stated:
We believe that trial courts should not refer to “sympathy.” Instead, when instructing the jury to consider the statutory catch-all mitigating circumstance of “[a]ny other circumstance arising from the evidence which the jury deems to have mitigating value,” trial courts should emphasize that the jury must weigh all mitigating considerations whatsoever which it finds supported by evidence.
N.C.G.S. § 15A-2000(f)(9) (1988) (emphasis added). We believe that this course will lead the jury to consider all of the mitigating evidence introduced as required by Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978), without the risk of encouraging the jury to exercise unbridled, and thus unconstitutional, discretion.
Hill, 331 N.C. at 421, 417 S.E.2d at 783.
[19] Defendant next contends that the trial court erroneously allowed evidence of the victim‘s good character introduced during the guilt phase to be considered at the penalty phase, thus violating the North Carolina capital punishment statute. Defendant concedes that the United States Supreme Court has foreclosed her argument that her Eighth Amendment rights were violated. Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720 (1991) (Eighth Amendment does not prohibit either admission of evidence of, or prosecutorial argument about, the murder victim‘s personal characteristics).
She argues, however, that during his argument in the penalty phase, the prosecutor improperly referenced evidence of the victim‘s character adduced at the guilt phase: “But then Bill Jennings’ good name wasn‘t good enough for her either, was it? . . . [He was a] fine man, who [the defendant‘s] own son even testified was a fine man. . . . All of these things that have no basis whatsoever just to smear that good man‘s reputation.” She argues further that the trial court improperly instructed the jury at the penalty phase that it could consider all evidence heard at both the guilt and penalty phases.
We have already concluded that the character evidence was admissible to rebut defendant‘s evidence that her victim was a mentally confused, demented man who often acted bizarrely. Pursuant to
[20] Defendant next contends that the trial court erred in submitting the aggravating circumstance that the murder was “especially heinous, atrocious, or cruel,” in that defendant was convicted of first-degree murder on the basis of torture, and we have interpreted our “especially heinous, atrocious, or cruel” aggravating circumstance as directed at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Goodman, 298 N.C. 1, 25, 257 S.E.2d 569, 585 (1979) (emphasis added). The State responds that the circumstance was properly considered in that defendant was convicted on the bases of both torture and premeditation and deliberation. We agree.
We have held that “when a defendant is convicted of first degree murder under the felony murder rule, the trial judge shall not submit [the underlying felony] to the jury . . . [as one of] the aggravating circumstance[s]” enumerated in
The situation here is analogous. Assuming without deciding that it is error to submit the “especially heinous, atrocious, or cruel” aggravating circumstance when a defendant is convicted
[21] Within this same assignment of error, defendant further contends that the trial court erred in submitting two aggravating circumstances based on the same evidence, i.e., the penetration of Jennings’ anus with a blunt object by force or against his will. The two aggravating circumstances were: (1) that the murder was committed during a sex offense,
The evidence tends to show that defendant savagely beat her elderly victim. He sustained multiple bruises and cuts to his head, scalp, face, neck, and legs; several bruises on his arms and hands suggested he tried to defend himself or ward off blows. Jennings endured bruises, scrapes and cuts to his penis — there was skin consistent with the type of skin found on the underside of the head of a penis on a forceps found in the motel room. Severe kicks or stomps to the abdomen tore the victim‘s mesentery, causing internal hemorrhaging. These blows did not cause immediate death. The quantity of mucus collected in his bronchial tubes showed that Jennings died slowly of multiple injuries. The blow to his head may have stunned him, and a large amount of analgesic in his bloodstream notwithstanding, the internal hemorrhaging would have caused him considerable pain, drowsiness, eventual unconsciousness and death. There was blood in the motel room, splattered on the furniture, ceiling, walls, floor, and back of the mirror. There was evidence that defendant had cleaned up blood in the bathroom. There was blood on the bedsheets and pillowcase and on towels in the bathtub.
This evidence and reasonable inferences therefrom, apart from the evidence of attempted penetration of the victim‘s anus, support
PRESERVATION ISSUES
[22-27] Defendant raises six additional issues which she concedes this Court has decided against her position: (1) the trial court erred by instructing jurors that premeditation, deliberation and intent to kill are not essential elements of first-degree murder on the basis of torture; (2) the Issue III instruction, directing the jury to continue to Issue IV if the mitigating circumstances are of equal value and weight to the aggravating circumstances, is unconstitutional; (3) the trial court erred by submitting the aggravating circumstance that the murder was especially heinous, atrocious or cruel, because that aggravating circumstance is unconstitutionally vague and overbroad as applied in North Carolina and in this case; (4) the North Carolina death penalty statute, and consequently the death sentence in this case, is unconstitutionally vague and overbroad, has been imposed in a discretionary and discriminatory manner, has been imposed or withheld on the basis of arbitrary and capricious factors and in individual cases without proper guidance; (5) the trial court erred in instructing the jury that the defendant
We have considered defendant‘s arguments on these issues, and we find no compelling reason to depart from our prior holdings. These assignments of error are overruled.
PROPORTIONALITY REVIEW
[28] Having found no error in the guilt and sentencing phases, we are required by statute to review the record and determine (1) whether the record supports the jury‘s finding of the aggravating circumstances upon which the sentencing court based its sentence of death, (2) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
We have held that the record supports the jury‘s finding of the three aggravating circumstances submitted to it: that the murder was committed while the defendant was engaged in the commission of or an attempt to commit a sex offense,
State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355 (1983), cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), reh‘g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983). We consider only those cases “roughly similar with regard to the crime and the defendant. . . .” State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985).
If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.
This case involves the murder of a frail and elderly husband by his healthy and much younger wife of less than three years. Features distinguishing the case include that (1) the murder was preceded by a period of physical and verbal abuse, during which defendant depleted her husband‘s financial resources; (2) the final assault on her husband was prolonged — occurring over two days — and vicious; (3) the victim, her husband, suffered great physical pain before death; and (4) the defendant never exhibited any remorse for the crime or pity for her victim. The jury found three aggravating circumstances: that the murder was committed while the defendant was engaged in the commission of or while attempting the penetration of the anus with an object; that the murder was committed for pecuniary gain; and that the murder was “especially heinous, atrocious, or cruel.” The jury found only one statutory mitigating circumstance, that defendant had no record of criminal convictions, and three non-statutory mitigating circumstances: that defendant had been a peaceful person in the community in which she lives; that she had no prior record for violent crimes; and
Defendant relies on six cases in which this Court has found the death penalty disproportionate. Two involved the “especially heinous, atrocious, or cruel” aggravating circumstance. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983). Three were robbery-murders and involved the pecuniary gain aggravating circumstance. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). One involved the course of conduct aggravating circumstance. State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). None is similar to the present case.
In Stokes, the defendant and two others planned to rob the victim‘s warehouse. During the robbery one of the trio severely beat the victim about the head, killing him. Stokes, 319 N.C. at 3, 352 S.E.2d at 654. This Court adjudged it important that the defendant was only seventeen. There was evidence that he suffered from an impaired capacity to appreciate the criminality of his conduct and was under the influence of mental or emotional disturbance at the time of the murder. Further, this was a robbery-murder. The defendant was convicted on the theory of felony murder; there was virtually no evidence of premeditation and deliberation, and no evidence that the defendant was the ringleader or deserved a death sentence any more than an older confederate who received a life sentence. Id. at 21 & 24, 352 S.E.2d at 664 & 666. We find the manifest dissimilarities with the present case significant.
In Bondurant, the defendant pointed the gun at the victim, a traveling companion, taunted him for two or three minutes, and shot him. Bondurant, 309 N.C. at 677, 309 S.E.2d at 173. The Court “deem[ed] it important in amelioration of defendant‘s senseless act that immediately after he shot the victim, he exhibited a concern for [the victim‘s] life and remorse for his action by directing the driver of the automobile to the hospital.” Id. at 694, 309 S.E.2d at 182. Defendant then entered the hospital to seek medical assistance for the victim. Further, the defendant spoke with police at the hospital, confessing that he fired the shot that killed the victim. Id. In the present case, by contrast, the defendant, a nurse by
In Benson, the defendant accosted the victim and demanded his moneybag. The victim hesitated and defendant fired his shotgun, striking the victim in the upper portion of both legs; the victim died later in the hospital of cardiac arrest occasioned by loss of blood from the gunshot wounds. Benson, 323 N.C. at 321, 372 S.E.2d at 518. This Court found the death penalty disproportionate because the defendant was convicted solely on the theory of felony murder; the evidence that he fired at the victim‘s legs tended to show that he intended only to rob the victim. The jury found only the pecuniary gain aggravating circumstance, but found, as mitigating circumstances, that defendant was under the influence of mental or emotional disturbance, as well as, as in the present case, that defendant had no significant history of prior criminal activity. Id. at 328, 372 S.E.2d at 522. Further, the defendant confessed and cooperated upon arrest, voluntarily consented to a search of his motel room, car and home, and pleaded guilty during the trial and acknowledged his wrongdoing before the jury, id. at 328-29, 372 S.E.2d at 522-23, in contrast to the actions of the defendant in the present case.
The murders in Young, Jackson and Rogers are simply not characterized by the viciousness and cruelty of the murder in the present case.
There are four similar cases in the pool in which the jury recommended a sentence of death after finding as an aggravating circumstance that the murder was “especially heinous, atrocious, or cruel.” Syriani, 333 N.C. 350, 428 S.E.2d 118; Huffstetler, 312 N.C. 92, 322 S.E.2d 110; Williams, 308 N.C. 47, 301 S.E.2d 335; State v. Smith, 305 N.C. 691, 292 S.E.2d 264 (1982), cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh‘g denied, 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983).
In Syriani, the defendant accosted his estranged wife and stabbed her to death. Following the assault, the defendant walked calmly back to his van and drove to a nearby fire station, where he told a fireman he needed medical attention because he had
In Huffstetler, the defendant beat his mother-in-law to death with a cast iron skillet. He fractured her jaw, neck, spine and collarbone. After the beating, the defendant went home to change his bloody clothes, returned to the scene to remove the skillet, and left to spend the night with a woman friend. Huffstetler, 312 N.C. at 98-100, 322 S.E.2d at 115-16. The jury in Huffstetler found as the single aggravating circumstance that the murder was “especially heinous, atrocious, or cruel.” The jury also found three mitigating circumstances: that the defendant‘s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired; that the killing occurred contemporaneously with an argument and by means of an instrument acquired at the scene and not taken there; and that the defendant did not have a history of violent conduct. Id. at 100, 322 S.E.2d at 116. This Court found the sentence of death not disproportionate, emphasizing the exceptionally brutal, prolonged and unprovoked nature of the assault and the defendant‘s cool actions afterwards. Id. at 118, 322 S.E.2d at 126.
In Smith, the defendant kidnapped and raped a cheerleader, then beat her to death and threw her body in a pond. Smith, 305 N.C. at 693-96, 292 S.E.2d at 266-68. The jury found as aggravating circumstances that the murder was committed while the defendant was engaged in the commission of rape, robbery and kidnapping, and that the murder was “especially heinous, atrocious, or cruel.” The jury found as a mitigating circumstance that the defendant was under the influence of mental or emotional disturbance. Id. at 707-08, 292 S.E.2d at 274-75. This Court upheld the sentence of death.
In Williams, the defendant battered an elderly woman and sexually assaulted her with a mop handle, leaving her to die. Williams, 308 N.C. at 51-54, 301 S.E.2d at 339-40. The jury found four aggravating circumstances: that the murder was committed while the defendant was engaged in the commission of first-degree burglary; that the murder was committed while he was engaged in a sexual offense; that the murder was committed for pecuniary gain; and that the murder was “especially heinous, atrocious, or cruel.” The jury found no mitigating circumstances. Id. at 57-58, 301 S.E.2d at 342. In upholding the sentence of death, this Court emphasized that the assault had been vicious and prolonged and that the victim was defenseless. Id. at 82, 301 S.E.2d at 357.
Defendant also relies on one case as being similar to the present case, State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988), in which the jury recommended a life sentence. In Allen, the defendant was convicted of the first-degree murder of her infant son. She admitted that she poured alcohol on the infant‘s feet and legs as he slept in his crib and then set fire to the crib. She watched the fire burn for about a minute and then left her apartment, taking her older daughter to a neighbor‘s where she stayed for thirty minutes. She said she wanted to kill her child and had been thinking about burning the child for days. She had tried to smother her daughter with a pillow some years earlier. Id. at 181, 367 S.E.2d at 628-29. There was evidence, however, that defendant was mildly retarded and suffered from paranoid schizophrenia. The court-appointed psychiatrist testified that, at the time of the fire, defendant lacked the capability of knowing the nature and quality of her behavior. Id. at 182, 367 S.E.2d at 629. These dissimilarities are significant and distinguish this case from the present case.
There are four cases of murder by a spouse in which the jury recommended a life sentence: State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982); 256” court=“N.C.” date=“1984“>State v. Hinson, 310 N.C. 245, 311 S.E.2d 256 (1984), cert. denied, 469 U.S. 839, 83 L. Ed. 2d 78 (1984); State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980); State v. Colvin, 297 N.C. 691, 256 S.E.2d 689 (1979). None are similar to the present case. In each of these marital killings, the killings were by gunshot and there was not the evidence of excessive brutality or suffering that there is in the present case. In Woods, the defendant hired her lover to kill her husband and was present when he shot her husband as he walked out the front door to go to work. The defendant was convicted as an accessory before the fact. Woods, 307 N.C. at 215-16, 297 S.E.2d at 576. In Hinson, the defendant and her lover, who pretended to be a law enforcement officer in an unmarked car, pulled the husband over; the defendant‘s lover shot her husband. Hinson, 310 N.C. at 247-49, 311 S.E.2d at 259. In Myers, there was evidence that the defendant had physically and verbally abused his wife and had threatened to kill her. Myers, 299 N.C. at 674-76, 263 S.E.2d at 770-72. On the day of the killing, the defendant confronted his wife and forced her to drive while he held a gun to her head. The victim grabbed the gun and pointed it away, but the defendant regained control of the gun and fired, killing her. Id. at 678, 263 S.E.2d at 773. In Colvin, the defendant said he would kill his wife before he would allow her to take his children away. He got a rifle, pointed it at his wife, and pulled the trigger, killing her. Colvin, 297 N.C. at 692, 256 S.E.2d at 690.
There are two cases of murder perpetrated by means of torture in which the jury recommended a life sentence. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991); State v. Phillips, 328 N.C. 1, 399 S.E.2d 293 (1991), cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 977 (1991).
In Crawford, the defendant coerced his girlfriend‘s six-year-old son to drink large quantities of water. Crawford, 329 N.C. at 470, 406 S.E.2d at 581. The swelling of the brain resulting from the ingestion of water caused a tremendous headache, culminating in a scream and followed by blindness; the fluid filling the child‘s lungs would have created a sensation of suffocation. Id. at 482, 406 S.E.2d at 588. The defendant maintained that the killing was accidental and that he was disciplining the child for disobeying house rules, or that he was administering a home remedy for food poisoning. Id. at 470-71, 406 S.E.2d at 581. The jury, as in the present case, found defendant guilty of first-degree murder based on both premeditation and deliberation, and torture. However, the
In Phillips, the defendants, husband and wife, battered a foster daughter to death. Phillips, 328 N.C. at 7-9, 399 S.E.2d at 295-96. The record shows that the jury found the two submitted aggravating circumstances, that the murder was “especially heinous, atrocious, or cruel,” and that the murder was part of a course of conduct including the commission of other crimes of violence against other persons. The jury also found both defendants guilty of felony child abuse of another foster child. It found the statutory mitigating circumstance, for both defendants, that the defendant had no significant history of prior criminal activity. It found ten non-statutory mitigating circumstances for each defendant, as well as the catchall, including the circumstances that defendants had been good parents and foster parents prior to the offenses charged and that they made efforts to revive the victim and save her life.
In the present case, by contrast, the defendant systematically abused her frail and elderly husband; she gave him drugs that confused him, and had, on at least one occasion, beaten him, dragged him across the room and stomped him with her cowboy boots. Jennings had told several friends he was afraid defendant would kill him or have him committed to an institution. Defendant waited five to ten hours before she reported the death and requested emergency medical personnel, but when they arrived, she was performing CPR on Jennings, who was, by that time, cold and stiff.
These circumstances distinguish this case from the cases discussed above. We find that Syriani, Huffstetler, Williams and Smith are the cases in the pool most comparable to this case. The extent of the brutality involved here, as in those cases, precludes our concluding that the death sentence in this case was excessive or disproportionate, considering both the crime and the defendant.
We hold that the defendant received a fair trial and sentencing hearing, free of prejudicial error. In comparing this case to similar cases in which the death penalty was imposed, and in considering both the crime and the defendant, we cannot hold as a matter of law that the death penalty was disproportionate or excessive. Robbins, 319 N.C. at 529, 356 S.E.2d at 317.
NO ERROR.
Justice FRYE concurring in guilt-innocence phase and dissenting in sentencing phase.
I agree with the majority that, in the guilt-innocence phase of her trial, defendant received a fair trial, free from prejudicial error. Accordingly, I vote to uphold the jury‘s verdict finding defendant guilty of the first-degree murder of her husband. I cannot agree, however, with the majority‘s conclusion that defendant‘s capital sentencing proceeding was free of prejudicial error. Accordingly, I vote for a new capital sentencing proceeding. In the penalty phase of the trial, three aggravating circumstances were submitted to the jury. As they appeared on the verdict sheet,1 the aggravating circumstances were: (1) Was the murder committed while the defendant was engaged in the commission of or while attempting the penetration of the anus with an object? (2) Was the murder committed for pecuniary gain? and (3) Was the murder especially heinous, atrocious or cruel? The jury answered “yes” to each aggravating circumstance.
The jury found four mitigating circumstances: (1) Defendant has no record of criminal convictions;2 (2) Defendant has been a peaceful person in the community in which she lives; (3) Defendant has no prior record for violent crimes; and (4) Defendant‘s childhood history, background and record show no indication of a habitually violent nature. After weighing the aggravating circumstances against the mitigating circumstances, the jury concluded that the mitigating circumstances were insufficient to outweigh the aggravating circumstances, and that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty.
Defendant argues that each of twelve alleged errors in the penalty phase of her trial entitles her to a new capital sentencing proceeding. I need not decide whether any one error, standing alone, warrants a new sentencing proceeding. As Justice Meyer said for a unanimous Court in a recent case involving trial error:
Although neither of the trial court‘s errors, when considered in isolation, might have been sufficiently prejudicial to warrant a new trial, we are of the opinion that cumulatively they are sufficiently prejudicial that we are unable to say that defendant received a fair trial, and therefore a new trial is required.
State v. White, 331 N.C. 604, 610-11, 419 S.E.2d 557, 561 (1992). Likewise, I conclude that cumulative errors in the sentencing phase of defendant‘s capital trial were sufficiently prejudicial to require a new capital sentencing proceeding.
I first consider defendant‘s assignment of error as it relates to the trial judge‘s instructions for the pecuniary gain aggravating circumstance,
Nevertheless, the trial judge instructed the jury as follows:
A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for having committed the crime, or as a result of the death of the victim.
If you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant stood to benefit from the remaining partnership accounts at the Merrill-Lynch in the name of the decedent, you would find this aggravating circumstance, and would so indicate by having your foreman write, ‘Yes,’ in the space after this aggravating circumstance on the form. If you do not so find or have a reasonable doubt as to one or more of these things, you will
not find this aggravating circumstance and will so indicate by having your foreman write, ‘No,’ in that space.
See N.C.P.I. — Crim. 150.10 (1990).
Defendant argues that the underlined portion of the instruction is constitutionally defective because it does not require that defendant kill the victim for the purpose of obtaining money. The instruction allows the jury to find this aggravating circumstance if defendant stood to gain financially by her husband‘s death, even if this financial gain were merely incidental to his death, defendant argues. The State argues that this instruction is not constitutionally defective and should be upheld. I agree with defendant.
In reviewing the constitutionality of jury instructions in a capital case, the critical question is ” ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S. at 399 (quoting Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 329 (1990)). To satisfy this “reasonable likelihood” standard, a defendant must show more than a “possibility” that the jury applied the instruction in an unconstitutional manner, but a defendant need not establish that the jury was “more likely than not” to have misapplied the instruction. See Boyde, 494 U.S. at 380, 108 L. Ed. 2d at 329.
The gravamen of the pecuniary gain aggravating circumstance is that “the killing was for the purpose of getting money or something of value.” State v. Gardner, 311 N.C. 489, 513, 319 S.E.2d 591, 606 (1984) (emphasis added); State v. Oliver, 302 N.C. 28, 62, 274 S.E.2d 183, 204 (1981). It is this financial motivation which “aggravates” the murder, that is, which sets this type of murder apart from other murders as being more egregious and therefore more worthy of the ultimate penalty of death. Certainly, as implicitly recognized by the State, the underlined portion of the instructions sweeps too far in that it directs the jury to find this aggravating circumstance on the mere fact that defendant “stood to benefit” financially from the death of her husband. As noted by defendant at oral argument, the surviving spouse of virtually every marriage will have some incidental financial gain from the death of his or her spouse. The contested language ignores the essence of the pecuniary gain aggravating circumstance: that the defendant killed the victim for the purpose of financial gain.
A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for having committed the crime, or as a result of the death of the victim.
(Emphases added.)
In this case, the State argues, the pecuniary gain aggravating circumstance was properly submitted to the jury because there was evidence from which the jury could find that this killing was motivated, at least in part, by defendant‘s desire to collect the remaining $21,000 in her husband‘s Merrill Lynch account. The majority notes that there was substantial evidence tending to show that the murder was committed for the purpose of pecuniary gain. I view the question — not as one of sufficiency of the evidence to support the aggravating circumstance — but whether, given the conflicting evidence, the jury was properly instructed on the law to be applied in reaching its decision. There was no evidence that defendant was “compensated” for the death of her husband, as in a killing-for-hire situation; nor was there evidence that defendant actually took money or other things of value from the person or presence of her dead husband, as in an armed robbery situation. Thus, jurors were asked to decide under this first paragraph whether defendant intended or expected to receive money as a result of her husband‘s death. When read in conjunction with the second paragraph, I conclude there is a “reasonable likelihood” that the jury applied this instruction in an unconstitutional manner, that is, in a manner which allowed it to find this aggravating circumstance without regard to whether defendant killed the victim for the purpose of obtaining the money. The pecuniary gain instructions were therefore unconstitutionally vague and overbroad as applied in this case.
In another assignment of error, defendant argues that the first aggravating circumstance as it appeared on the verdict sheet — “Was the murder committed while the defendant was engaged in the commission of or while attempting the penetration of the
Before turning to the merits of this argument, I note that the State argued in its brief and at oral argument that defendant did not object to the submission of this aggravating circumstance at trial and therefore has not preserved her right to appellate review on this issue. See N.C. R. App. P. 10(b). The State is correct that defendant made no objection at trial. Because this error is so fundamental to the proper functioning of our capital sentencing scheme, however, we should address it as though defendant objected at trial. See N.C. R. App. P. 2; see also State v. Fowler, 270 N.C. 468, 472, 155 S.E.2d 83, 86 (1967) (when considering a capital case, this Court may review “any errors that appear in the record, whether excepted to and assigned or not“).
The only aggravating circumstances upon which the State may rely when seeking the death penalty are those enumerated in
Judging from the oral instructions, it is obvious that the trial judge was relying on
(5) The capital felony was committed while the defendant was engaged . . . in the commission of, or an attempt to commit . . . a sex offense.
The crime of sexual offense is divided into first-degree and second-degree sexual offense. See
(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:
(1) By force and against the will of the other person . . . .
“Sexual act” is defined in
In his oral instructions to the jury, Judge Butterfield correctly explained this aggravating circumstance as follows:
Now, ladies and gentlemen, a sexual offense involves the penetration of the victim‘s anus by force or by threat of force and was sufficient to overcome any resistance which the victim might make, and that the victim did not consent, and it was against his will.
The aggravating circumstance, as it appears on the verdict sheet, however, does not require the penetration of the victim‘s anus be by force or against the victim‘s will; instead, only penetration is required. What appears on the verdict sheet as an aggravating circumstance does not constitute the crime of sexual offense, and is therefore not one of the eleven exclusive aggravating circumstances set out in
In another assignment of error, defendant argues that the trial court erred by submitting both of the following aggravating circumstances: (1) the capital felony was committed during a sex offense,
I find this case distinguishable from Quesinberry and Goodman. Unlike those cases, there was not a complete overlap of evidence between the two aggravating circumstances in this case. Furthermore, I agree with the State that there was evidence other than the sexual offense which would have supported the proper submission of the aggravating circumstance of especially heinous, atrocious, or cruel. I therefore reject defendant‘s argument that it was error to submit both of these aggravating circumstances.
However, I agree with defendant that there is a reasonable likelihood that a jury would find the sexual offense alleged, the forced penetration of the anus with an object against the will of the deceased, to be also especially heinous, atrocious, or cruel. This would result in the “cumulation of aggravating circumstances against the defendant.” Id. To avoid this cumulation, the trial court, at a new sentencing proceeding, should instruct the jury in such a way as to ensure that jurors will not use the same evidence to find both aggravating circumstances.
I recognize that, judged in light of the State‘s evidence, this was a particularly brutal and senseless murder. However, whenever the State seeks to impose society‘s ultimate punishment, it is the responsibility and duty of this Court to ensure that a defendant, no matter how horrific the crime, is afforded a fair sentencing proceeding in accord with our capital sentencing procedures as set forth in
Chief Justice EXUM joins in this concurring and dissenting opinion.
STATE OF NORTH CAROLINA v. WILLIAM RANNELS, A/K/A BILLY REYNOLDS, A/K/A WILLIAM TENT
No. 26A91
(Filed 4 June 1993)
1. Constitutional Law § 344 (NCI4th) — excusal of prospective jurors — unrecorded bench conferences before trial — no constitutional violation
Defendant‘s unwaivable right to be present at all stages of his capital trial was not violated by the trial court‘s excusal of jury pool members after private, unrecorded bench conferences where these prospective jurors were excused on the beginning day of the session before any case had been called for trial.
Am Jur 2d, Criminal Law §§ 695, 696.
2. Jury §§ 150, 223 (NCI4th) — death penalty views — ambiguous answers — excusal for cause — refusal to permit rehabilitation — life sentence — harmless error
Assuming that it was error for the trial court not to permit the defendant in a capital trial to attempt to rehabilitate a juror who was excused for cause because of his views on capital punishment after having given ambiguous responses to voir dire questioning about the death penalty, this error was harmless because defendant received a life sentence. The improper excusal of a juror in violation of the principles of Witherspoon v. Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412 (1985), affects only the sentencing proceeding and not