*1 CASES ARGUED AND DETERMINED IN THE SUPREME COURT
OF North Carolina
AT Raleigh STATE NORTH v. OF CAROLINA ANSON AVERY MAYNARD
No. 178A81
(Filed
1984)
5 June
63;
§
1.
op-
Constitutional Law
Law
Criminal
135.3— exclusion of veniremen
posed
penalty
proper
to death
—
jurors
jury panel
The exclusion of two
from the
was not in violation of
(1968)
Illinois,
where,
Witherspoon
pressed, they
5. Constitutional —fail- right object object request to voir dire —waiver of to ure of defense counsel appeal on objected its own witness’s assertion of neither to Where defense counsel inquiry an into the conduct Fifth Amendment claim nor moved court to his claim, place upon declined to was a valid basis for the the Court whether there duty dire its determine to a voir own motion to the trial court the conduct a defense witness’s Fifth Amendment claim. if was valid basis for the there jury gross impropriety argument § Law 102— to 6. Criminal —no attorney’s closing arguments degree a murder prosecuting The in first improper deprive grossly thus did not the defendant of a case were not and impartial and trial. fair explain hearsay to § 73.3— not within rule —offered 7. Criminal Law statements subsequent conduct of a statements that a was no error in the admission detective’s There February department alleged on 10 1981 which complaint was filed with his plywood building 7 from a site and that on of were stolen that January sheets jewelry person reported a box had been taken since 1981 another asserted, testimony prove of the matters but was not offered to the truth the report complaints concerning filed of show that a had been was offered to explain subsequent property and the detective’s conduct. stolen to hearsay testimony prejudicial § 73.1— not error 8. Criminal Law —admission Testimony attorney by district that a detective told her that an assistant concerning by property provided that had informаtion a State’s witness the only ring engaged theft State’s witness was in the “could been stolen while the actually by participated break in or who the have been obtained someone erroneously position a the break in” was admitted was in to know about who any exception hearsay hearsay fall to the did not within because it was and however, rule; testimony merely prejudicial the the error was since 15A-1443(a). already G.S. of facts in evidence. cumulative and corroborative hearsay testimony concerning Law 73— of statement 9. Criminal admission proper made victim — attorney’s correctly The court admitted an assistant district trial testimony give testimony her “that he would truthful that the victim stated to against” vic- involving charges defendant where the criminal cases testify against a to as witness the statement that he intended tim/declarant’s contemporaneously with cooperate and with State was made defendant probation exchange guaranteeing him the execution of the document testimony; was executed in the cooperation truthful document such attorney’s presence had discussed the matter after she assistant district father, witness, investigating of- and with victim his with another circumstances, ficers; where, possibili- awas reasonable there under these truthful, attorney ty to the assistant district that the victim’s statement victim, fact, ie., testify against the defendant and intended murder the victim. supplied defendant with the motive to fact co-conspirator exception 10. Criminal Law 73— hearsay statement of rule — Testimony by concerning co-conspirator a witness a statement of a of hearsay defendant’s were exception admissible defendant as an rule where the conspiracy statements were made in the of course and in furtherance thereof. sentencing hearing 11. judgment Criminal Law 135.6— in unre- —admission proper—rebutting lated criminal significant evidence of no criminal his- cases — tory sought prove Where mitigating circumstance that he had 15A-2000(f)(l), significant history activity, prior no criminal at G.S. sentencing hearing, properly permitted the trial court deputy clerk of superior judgment court to read contents in two unrelated involving criminal cases the defendant and the two *3 bills indictment returned original charge him in those cases where the in the bill of indictment where, matter, plea, subsequent formed the of practical basis a and as a the judgment court’s would have reflected information from the bill of indictment charge set plea, to forth the nature of the to which the defendant entered his offense, including the charged, date the of circumstances the crime pertinent charged other information common to both the crime and the crime 15A-1221(b). upon judgment which G.S. entered. sentencing phase prior 12. Criminal 135.6— Law —evidence of details of 8 properly testimony significant admitted to rebut defendant’s of no crimes — history prior activity of criminal murder, phase sentencing prosecution first-degree At the of a for the trial State, properly court allowed the in rebuttal of defendant’s evidence which history significant prior activity, tended to show a laсk of of criminal to in- 15A-2000(f)(l) troduce evidence of the details of the crimes. G.S. refers to convictions, activity,” t¡o “criminal not criminal evidence of criminal ac- conviction, activity tivity, particularly judgment a connected to of would be relating activity relevant as both to defendant’s involvement in criminal and to important significant. the issue of whether that involvement was sentencing hearing misrepresentations prior 13. Criminal Law 135.6— in case- — of rebuttal character evidence testimony concerning misrepresentations An officer’s defendant’s the prior possessed weapons competent court a case that he no at his home was bearing good and relevant in rebuttal as on defendant’s character. jury argument gross impropriety 14. Criminal Law 102.6— —no jury prosecutor’s argument during sentencing phase The the of a first-de- gree grossly improper require judge murder case was not so as to the trial act ex mero mota. first-degree sentencing hearing 15. Criminal Law 135.7— murder — —instructions penalty proof duty of death —burden to return — failing jury The trial not err in to instruct the that the State court did beyond proving aggravating a had the burden reasonable doubt that the cir- substantially outweighed sufficiently mitigating cumstances circumstances SUPREME IN THE COURT instructing jury justify imposition penalty or in that it of the death aggravating if it circumstances a of death found must return outweighed verdict mitigating circumstances. unanimity require- sentencing phase § 135.7— 16. Criminal Law —instructions mitigating circumstances ment for jury they failing to were Although inform the the trial court erred mitigating required factors, in their determination reach a unanimous decision prejudicial it was error favorable to defend- was not because error ant. constitutionality penalty § statutes 135.4— of death 17. Criminal Law unconstitutionally capital scheme does not murder The North Carolina imposing penalty. death permit subjective and discrimination discretion deadly weapon presumptions § use of 14— from intentional 18. Homicide implies killing was holdings that a done with malice Previous law intentionally unlawfully upon a inflicted a wound vic- when the defendant deadly resulting weapon reaffirmed. a death are tim with proof mitigating § 135.9— circumstances —burden Criminal Law 19. sentencing hearing first-degree in a murder A defendant prove placed process the trial court the burden on him to due because denied by preponderance of mitigating a the evidence. circumstances grant immunity mitigating cir- co-defendant not 135.9— 20. Criminal Law cumstance grant of immuni- not entitled to have the consider Defendant was sentencing ty mitigating circumstance in a to co-defendant as the State *4 hearing first-degree in a murder case. constitutionality penalty § statutes 135.4— of death 21. Criminal Law statute, 15A-2000, penalty is constitutional. Carolina death G.S. The North heinous, ag- constitutionality § of atrocious cruel 135.8— 22. Criminal Law gravating circumstance atrocious, heinous, aggravating of “especially or cruel” circumstance The 15A-2000(e)(9) unconstitutionally vague and overbroad was not rendered G.S. by Oliver, interpretation 302 Supreme of that statute in State v. Court’s N.C. 28. proportionality of death sentence Criminal Law 135.10— 23. testify encourage policies upon compelling which witnesses Based upon the in State v. Bar- and court’s decision without fear based criminal trials Oliver, of field, 309 defendant’s sentence and N.C. testify against agreed potential witness who had the murder of a death for solely purpose prevent- for the of was committed another crime which him in ing considering disproportionate testimony, nor excessive was neither 15A-2000(d)(2). G.S. and the defendant. both the crime IN THE SUPREME COURT Frye concurring guilt phase Justice as to dissenting result as to sentencing phase. joins dissenting opinion. Justice Exum in this Braswell, by Appeal from defendant Judge, at the 30 Court, November 1981 of Criminal Session Superior Cumberland County. form, indictment, In a bill proper defendant was charged with the first-degree of Stephen Henry. murder G. A con- victed of first-degree defendant murder and recommended a sen- tence of death. From his conviction imposition death, sentence of directly appeals to this Court as 7A-27(a). matter of right pursuant to G.S. §
Defendant brings forward assignments numerous of error relating to both the guilt-innocence phase and the sentencing below, of his For phase trial. the reasons uphold stated we murder, conviction of first-degree imposed sentence thereon. Edmisten, General, L. Attorney W. Donald Ste- Rufus General, Assistant
phens, Attorney State. for Stein, Petersen, Defender, Adam Appellate by Ann B. Assist- Defender, ant Appellate defendant-appellant.
MEYER, Justice. body On June a fisherman discovered the Stephen Erwin, Henry Cape G. in the Fear River near North Carolina. The body had weighted body been down cinder blocks tied tо the by ropes. autopsy gunshot An revealed wounds and force blunt wounds to the head and stab wounds in the The eight abdomen. wounds were the The blunt gunshot cause death. force wounds the head were inflicted before death and the stab wounds had after been inflicted death. *5 Gary
The defendant and Bullard were charged arrested and arrest, his first-degree with murder. Within a week of Mr. Bullard testify immunity for for agreed to the from all exchange State Henry’s out of charges arising Stephen death. IN THE SUPREME COURT the trial to show that defend-
The State’s evidence at tended larceny entering ring. and breaking was the leader and ant Defendant, Henry, Jerry Stephen and had Scott together heavy and a jewelry, guns, equip- a boat building supplies, stolen eventually One eve- The stolen was sold. property ment trailer. police him and said that girlfriend defendant’s called ning Henry Stephen at sent Scott and were his home. Defendant An verify Henry agree- were arrested. this information. Scott if would with the that Scott assist prosecutors ment reached granted he would be recovering the stolen police property, An immunity theft charges arising ring. on all out of the addi- victim, Henry, was reached with agreement Stephen tional whereby exchange testimony for his defendant his him, all State would guilty charges against criminal plea that he receive a sentence. probationary recommend Jerry when Stephen Scott testified that defendant heard of State, Henry’s plea defendant noti- bargain agreement with Henry Henry give money that would through fied Scott defendant testify. Henry a bus ticket if would and not leave town When refused, Henry plans the first of several to kill began defendant Henry. defendant, occasions, on several
Bullard testified that trailer to arrange Henry him to come to Bullard’s fa- asked occasion, Henry’s Henry one came to the cilitate murder. On which thwarted accompanied girlfriend trailer but his occasion, was to bring defendant’s another Bullard plan. On Black Decker Plant where de- pond the victim to a near the & but, Henry went to to kill him. Bullard visit waiting fendant was reservations, Instead, carry out the plan. to his own failed to due Henry defendant Henry left at his trailer home and told he short, In were none of which plans, would not come. there several materialized. further testified June
Bullard Saturday morning, home. On June night at Bullard’s spent Henry planned move. It was help Bullard left home him the Henry alone and take Bullard Bullard would find Henry would be and Bullard waiting. residence where defendant arrived, they When p.m. about 8:30 at Bullard’s home at arrived not see the defendant. there Bullard did Bullard’s wife was but *6 IN THE SUPREME COURT Maynard State v. Henry Bullard and then went out behind the house at which point they decided to walk to a local store to buy they beer. As walked woods, behind, through the defendant attacked them from knock- both men ing ground. Bullard heard sounds of blows being Henry dealt and saw defendant on top of him. Bullard sat up said, and in the goddamn you hell are doing?” “[w]hat Defendant pointed gun at him and told him to . .my “shut . mouth or he my going blow brains away.” Bullard testified that defend- ant made Henry’s him tape hands behind his back and that he left, thereafter ran back to his apartment. Before he [Bullard] Bullard saw Henry the defendant hit several times with a pistol Henry and heard beg “No man. Don’t man. man.” Stop When he returned to his apartment, Bullard told his wife that defendant jumped Henry had in the woods. He then disabled defendant’s truck in an prevent effort to defendant from using it to take the Defendant, however, body away. off, took Moped, Bullard’s drove and returned a few minutes later with a light blue pickup truck. Defendant ordered Bullard to accompany him and Bullard replied anywhere. that he wasn’t going Defendant responded that Bullard “in it” and ordered him to drive. Bullard drove the blue truck pickup Henry’s to where body was lying. They carried some blankets in they which wrapped body they and then put it into the back of the truck. Defendant drove to Dunn to gravel a and into the pit woods. The two men were unsuccessful in their attempt dig grave body decided to throw the into the river. Defendant nearby drove to a building and some got cinder blocks They and a rope. tied cinder blocks body around the six inflicted or more stab wounds into it to insure that it would body sink. The was then thrown into the water. Defendant also threw the gun into the water.
Defendant Gary contended that problem Bullard had a Henry arising Henry’s out of marijuana; selling Bullard at- tempted involve defendant plan Henry to isolate so that him; Bullard could beat and that defendant refused Bullard’s re- peated requests assist the plan.
Defendant further contended that he had nothing to do with murder, Henry’s Stephen but that he was at a bar Gillespie Fayetteville Street Henry when was murdered. In support alibi, the testimony offered people two who saw Ruby’s him at Bar on the night of 13 June 1981. One woman testi- 6:30 7:00 p.m. at approximately fied that she arrived there throughout night, off and on and saw defendant evening *7 thirty a minutes when period was never more than that there time, closing she left at see the defendant. When she did not a.m., The second outside. standing 1:00 the defendant about defendant could not have been out also testified that the witness addition, In twenty thirty minutes. for more than sight testimony witnesses who of a number of defendant presented one that Gary Bullard admit that he they said heard he discussed how he Henry point and that at one killed Stephen on the defendant. killing the blame for place and Scott could Phase Guilt I. denied a fair trial that he was Defendant first contends jury excluded from the jurors improperly were because several penalty. Specifical- the death concerning beliefs due to their panel (a) in jurors were excused violation ly, claims: that two defendant Illinois, 510, v. 391 U.S. 20 in Witherspoon set out of the standard (b) (1968); jury a qualifying of death process 776 that L.Ed. 2d jurors such as to render all of the is guilt phase to the prior guilty during guilt return a verdict of predisposed selected (c) and, trial; jurors improperly six other were that phase instructions on the they were not detailed given because excluded they that stating unequivocally process before penalty death in case. the death penalty could not impose A. jury panel [1] Defendant in violation of the rule contends that two jurors were excluded in Witherspoon. We have ex from the expressed per dire to ascertain the voir conducted amined thе the death jurors McKoy regarding and McMillan sonal beliefs that indicated jurors’ responses both initial Although penalty. concerning the their beliefs than certain about they were less nevertheless, they unequivocally pressed, when penalty, death a sen they impose not conscience could good that responded North juror McMillan stated Specifically, tence of death. my moral own Penalty Statute Death Carolina’s “conflict[s] he would resolving this conflict indicated that judgments” the law of conscience and not his own upon based make a decision IN THE SUPREME 9 COURT v. State Thus, McKoy responded this State. Juror similar fashion. jurors were properly these two excused under rule enun- ciated in Witherspoon, jurors to wit: that who state their beliefs would allow personal impose them to a sentence of Illinois, may be properly death excluded. v. Witherspoon U.S. 510. Defendant’s assignment error is overruled.
B.
With
to defendant’s
respect
contention that
used
process
jury
in death
qualifying
prior
such
guilt phase
as to
jury
render the
“guilt prone,”
selected
acknowledges
has already
this Court
determined that the current
se
process
lection
in first-degree
State
murder cases is con
(1980).
126,
v.
Avery,
stitutional. State
261 S.E.
N.C.
2d
Pinch,
denied,
also
292 S.E.
See
2d
cert.
*8
(1982),
denied,
(1983);
C. [2] Defendant recognizes that the answers which six other jurors gave response in questions asked about their beliefs regarding the death penalty constituted basis for ex- proper cusal in the conformance with standard set out in Witherspoon. essence, The six in jurоrs, they impose stated could that not the case, any penalty death answers trial upon which the court could its decision to support excuse under Witherspoon. them However, defendant “jurors contends properly that cannot be they cause unless give struck for type unequivocal of re they sponse have first been a basic given understanding of after penalty process by death the mandated We the current statute.” The agree. do not purpose jury the process selection first- murder cases degree a par to ascertain whether beliefs juror holds respect ticular imposition of death cannot, circumstances, are such penalty that he she under any or vote to impose the An understanding sentence of death. of the under which process this ultimate conclusion is reached should can, not affect cumstances, one’s he as whether or she cir under beliefs Therefore, vote to the death impose penalty. we overrule defendant’s error on assignment of this issue. IN THE SUPREME COURT
State v. II. [3] Defendant next contends that the trial court deprived him of his right to confrontation when it limited his cross-examination of was concerning living a State’s witness whether witness alone after marital suggests her husband had left the home. Defendant that his to confrontation was denied because he not right allowed the “means of the witness in context of putting [her] so may quality environment evaluate the [her] testimony.” We do agree.
It is well settled rule of law cross- scope examination rests the discretion trial largely cоurt. See (1983). 304 S.E. Ziglar, 2d 206 Absent a showing of an abuse of discretion error prejudicial has resulted, trial will not ruling court’s be disturbed on review. value, testimony Id. The proffered had tenuous impeachment we do not believe trial that the abused his judge discretion rul- as ing he did.
III. [4] Defendant also contends that the trial court erred refus testimony to admit ing concerning discussions between defendant attorney, Brady, Edward relating disposition charges criminal pending against defendant because of his in volvement with Henry Scott and in the ring theft activities for testify which Henry against defendant. Specifically, de fendant contends that trial court erred in sustaining objec *9 tions to the following series of of questions asked Edward Brady:
Q. you have any agreement Did concerning punishment? A. any We never —I didn’t reach agreement with Jean
Powell. Jean Powell made plea a offer to me. Q. you convey Did you the agreement had concerning the
disposition of Maynard? the cases to Mr.
A. I did. —
Q. Was he in agreement with that Stephens: Mr. —objection.
Court: Sustained. 11 v.
State Q. Now, that, as a result was there cases to be tried County
before a in Hoke or judge Cumberland you and four discussed? arising from those nine cases that Mr. Stephens: Objection. Sustained.
Court:
A. No.
Q. What was the to dismiss of those be- agreement all cases you Attorney’s staff?
tween the District that. Stephens: Mr. He has answered Sustained. Court:
Q. your Were those cases accordance disposed Attorney’s with the District office?
agreement A. No.
Q. Why?
Mr. Stephens: Objection. Sustained.
Court: Mr. what has include the record Defendant failed to thereby questions would to these Brady’s answers have been Cheek, v. State prejudice has show their exclusion. failed to 689, (1983); Wilson, 304 N.C. 299 S.E. 633 2d (1982). Furthermore, witness inasmuch as the 2d 804 S.E. reached, remaining ever agreement no indicated that be We therefore overrule irrelevant. questions appear error. assignment
IV. [5] Defendant next contends that he deprived his con when the of evidence production right compel the stitutional upon excused a witness “to be defense permitted trial court any in without privilege amendment assertion of fifth blanket claim to that legitimate had whether witness quiry into States, v. United cites doing, In so privilege.” Hoffman (1951), which it for the L.Ed. held that 341 U.S. amendment a witness’s fifth whether to determine trial court *10 justified clearly claim is him if it require ap- to answer court is Id. pears to the that he mistaken.
The is question here not the standard under which the trial claim, is if is a basis as court to determine there was the Rather, case in is whether the trial question judge, Hoffman. motion, on his or her own to conduct a voir required dire to if determine there is a basis for witness’s fifth amendment claim (1) (2) presented when that witness was the defense and object fails to at trial to the witness’s assertion case, witness, Grady fifth amendment In the instant right. Gary was asked a series Epps, questions concerning statements jail Epps. Bullard made while in The supposedly exchange witness, between defense counsel and the defendant’s own Epps, was as follows:
Q. you Gary you Did know Bullard while were in there? Yes, A. sir.
Q. you were in there with him? long How A. I Up to the time that was sent to prison.
Q. you Did ever have conversation with Mr. Bullard? Sir, A. I say I’d rather not about that. will nothing take the
fifth amendment. Q. Well, just you did have a conversation^] A. I’d rather take the fifth amendment.
Q. already have been all cases You tried with pending sir, you, County? in Cumberland Honor, I A. like Your would to take the fifth on that. Very well. Court:
Q. you Gary Do know Bullard? Honor, Objection, your
Mr. he has answered Stephens: that. prior Sustained in view of his answer.
Court: *11 THE IN SUPREME COURT Maynard State v. Q. Gary Bullard you concerning statement Did make within the last few minutes?
recently, Objection. Mr. Stephens: Sustained.
Court: Q. you When last time saw Mr. Bullard? is the (Pause) A.
Q. you If remember? answer) (Pause, pause,
A. no long Q. you question? do decline to answer Or answering question) witness not (Long A. pause, answer, Q. your Honor. I he should submit has been remain- show the witness Let the record Court: of the fifth privilege The claims the silent. witness ing United States. Go amendment Constitution your next question? Scott, Q. Jerry You Scott? know
(NoA. response) answer, your sir? What
Court: Honor, I fifth amendment. Your take the A.
Q. County your since you Have been back Cumberland today? until August
trial in
(NoA. response) answer, your sir? What is
Court: A. Fifth amendment.
Q. to answer you you planning I are not Do understand anymore?
any questions Right.
A. I Q. ask might refusing anything answer You are you?
A. Right. IN THE SUPREME COURT
Q. Honor, that, I Your in view of fur- anything don’t know I can ask him.
ther Any
Court: cross examination? Honor, Stephens: Mr. I Your have no Motion to questions. testimony. strike *12 may The down.
Court: witness The motion to strike step testimony is allowed. reflects, As object the record defense counsel failed to to privilege assertion of the fifth amendment Epps’s to make motion that the trial court voir dire to conduct determine if for Epps’s there a valid basis fifth amendment claim. Given this was own he defendant’s witness and that did not chal- the witness’s assertion of lenge his fifth amendment right, we to place upon duty decline the trial court the to conduct voir own dire its motion to if determine there was a valid basis for the defense witness’s fifth amendment claim. Defendant’s reliance (5th Goodwin, 1980), on United States v. F. 2d 693 Cir. Goodwin, In misplaced. objected defense counsel to each witness’s assеrtion of his fifth amendment right self-incrimination. Here, however, defense counsel objected neither to asser- Epps’s tion of his fifth claim amendment nor moved the court to conduct inquiry an into whether there was a valid basis for the claim. This assignment error is overruled.
V.
the
[6]
guilt
Defendant also
phase
contends
trial,
the
that during closing
prosecutor argued facts not sup
arguments
record,
by
ported
misstated the law
attempted
and
to add the
witness,
prestige
credibility
of the State to the
of its principal
all
which
to
served
deprive
defendant of his right to a fair and
trial. We note
impartial
that defendant did
object
not
at trial
to
prosecutor’s
argument. We must therefore determine whether
prosecutor’s
remarks
amounted
such gross
as
impropriety
require
the trial
ex mero
judge
act
motu. See State v.
Oliver,
326,
(1983).
309 N.C.
307 S.E. 2d 304
A
prosecutor
a criminal case is entitled to argue vigorous-
evidence,
ly all of the facts in
any reasonable inference that can
be drawn from those
law
facts
is relevant
the is-
so,
may
testimony.
place
Id. “Even
counsel
not
by
sues raised
by
injecting
matters
incompetent
prejudicial
before
beliefs,
not
knowledge,
personal opinions
supported
his own
355, 368,
Johnson,
v.
259 S.E. 2d
by the evidence.” State
N.C.
(1979).
752, 761
attorney’s
carefully
prosecuting
closing
After
examining
case,
argument
we
concluded
argument in this
have
and thus did not
the defendant of a
grossly improper
deprive
impartial
Accordingly,
fair and
trial.
the trial court did not err
failing
respect
prosecutor’s argu-
act ex mero motu
Oliver,
304;
ment. See State v.
309 N.C.
307 S.E. 2d
(1983).
assignment
VI. prejudicial Defendant contends that the trial court committed hearsay when four into We error it allowed statements evidence. will each of the four errors and the alleged discuss seriatim *13 why the admission of these does not con- reasons statements prejudicial stitute error.
A. [7] Defendant first contends that the trial court erroneously ad filed complaint mitted Detective Hart’s statements that a February alleged fifty 10 1981 which department with his that 7 were from a site that on plywood building sheets stolen jewelry had January person reported 1981 box another testi objections taken. Defendant’s admission this been by court. the trial had mony judge were overruled the trial After objections to Detective Hart’s overruled one of defendant’s what testimony, person instructed the judge (the said, if not anything, made complaint) individual that complaining per “It evidence. statements substantive [the what only purpose showing is for the limited received son] and what course of conduct any, if witness received report, this it receipt of the information but upon state of mind he was in not substantive evidence.” is that, by on numerous occasions
As has been stated this Court oth- purpose is offered for a extrajudicial an statement whenever asserted, is it not hear- truth of the matter er than proving 16
State v. Irick, 480, say. (1977); 291 231 S.E. N.C. 2d 833 White, (1979). N.C. S.E. 2d 281 Additionally, Court has held that the statements of one person to another are admissible to explain subsequent conduct of the person to Tate, whom the statement was made. State v. (1982). S.E. 2d 581 case, In the immediately instant prior to the defendant’s ob- jеctions to the testimony, aforementioned Detective Hart testified concerning events which led to the arrest of Stephen Henry Jerry Scott. Hart’s subsequent testimony concerning the alleged filing of the complaints with his department was not of- asserted, prove fered to the truth of the matter but it was offered to show that a report had been filed of complaints concerning property. stolen testimony This was admissible to explain his conduct; arrest, subsequent why, following Scott’s Hart had engaged conversations with Scott about property reported missing from different locations and why also he had taken Scott to various places which Scott identified as the scenes of crimes which he had participated. Hart’s statements were' also admissible why to show police negotiated an agreement with Scott for his cooperation and assistance in retrieving stolen property. Since testimony Hart’s was not offered to prove the truth of the asserted, matter and therefore was not hearsay, it was objec- tionable on that basis. Defendant’s assignment of error is over- ruled.
B. [8] Defendant’s second contention is that the trial court erred hearsay testimony admitting of Assistant Attorney District Jean (who trial) Powell did not participate concerning a state ment made Detective Hart. Specifically, Ms. Powell testified *14 that Detective Hart told her that the by information provided Scott concerning property that had been stolen while Scott was in this engaged theft ring only “could have been by obtained actually someone who in participated the break in or who was in know position to about the in.” break We agree with defendant testimony that erroneously was admitted because it was hearsay and does not fall within any exception hearsay However, rule. the error was not prejudicial. IN THE SUPREME COURT 17 testimony
Scott’s at trial included concerning details all of the events which led to Detective Hart’s conclusion Ms. Powell had, fact, that Scott participated in the break-ins. Scott was subjected thereafter to an in-depth thorough cross-examina- by tion counsel for defendant each of concerning those events. Powell, conclusory Hart’s statement to Ms. which she was er- trial, roneously permitted at repeat merely cumulative and already corroborative facts in evidence. error; is,
In light the foregoing, we find no prejudicial that that, there is no “reasonable possibility had the error in question committed, not been a different result would have been reached 15A-1443(a). short, at the trial.” G.S. In we cannot conclude that would have guilty found defendant not of first-degree they murder had erroneously not heard this testimony admitted reliability concerning of information on a collateral matter. This assignment of error is therefore overruled.
C. [9] Third, defendant contends trial court erred in admit hearsay ting testimony Assistant Attorney District Powell victim, concerning by Henry. a statement made Stephen Spe cifically, complains erroneously defendant that the trial court ad testimony Ms. Henry mitted Powell’s stated to her “that he testimony would give truthful involving cases criminal charges .” Maynard. Anson . . initially general Defendant made a objection testimony, admission of this during but a subse hearing before the quent judge, presence jury, outside the grounds defendant stated as for his objection that Ms. Powell’s testimony was hearsay. inadmissible For the of this purposes ap peal, we will treat objection objection, defendant’s as a specific thereby testimony requiring only show that the grounds inadmissible advanced him. 1 generally See (1982). on North Brandis Carolina Evidence 27§ Vestal, (1971), In State v. 278 180 N.C. S.E. 2d 755 cert. denied, (1973), Alston, recently U.S. and most (1983), 298 S.E. hearsay 2d we held (1) testimony is admissible when two factors are shown exist: (2) necessity, and a reasonable As in probability truthfulness. Alston, Henry, Vestal and the death of the vic Stephen case, present necessity require- satisfies tim/declarant *15 IN THE SUPREME COURT his wife statements that the victim’s In Vestal we held ment. part were trip his business the destination concerning and there- affairs and business of domestic arrangement routine In Alston of truthfulness. probability a sufficient presented fore victim’s state- that the was a sufficient probability held there we enforcement of- made to a law it was was truthful that ment criminal alleged concerning death shortly before the victim’s ficer and the defend- the victim ill-will between activity resulting intent, motive, show testimony was relevant to Alston the ant. In of the defendant. part malice on the case, he statement that In present victim/declarant’s and to testify the defendant against as a witness intended to with the contemporaneously was made with the State cooperate him probation еxchange guaranteeing of document execution testimony. The was document and truthful cooperation for such had discussed Ms. after she Powell’s presence executed father, Scott, with and with Henry and his Stephen matter circumstances, we believe that officers. Under these investigating Henry’s statement to Ms. reasonable probability there is a fact, truthful, i.e., Henry, in intended to Stephen was Powell supplied It was this fact that testify defendant. relevancy Henry. The of the with the motive to murder did not err in thereby judge per- evidence is established. The trial Henry’s testify concerning Stephen Ms. Powell state- mitting above, Furthermore, fully had been ment her. as noted Henry and the between State. plea agreement apprised Any substantially the same information in the admission of error could not have been hearsay preju- statement in the form of this dicial.
D. mitting [10] Finally, testimony defendant contends of Elaine Rousseau that the trial court erred concerning a statement ad Joyce Baggett. defendant’s Mrs. Rousseau tes girlfriend, made Joyce on one when the Baggett present tified that occasion defendant, Maynard, Anson talked to her some “doing about victim, Henry. Rousseau then thing” Stephen testified said, Ms. she had asked if she involved and she Baggett “yes.” *16 Maynard
State v. Subsequently, Mrs. Rousseau was asked following ques- tion:
Q. you Let me ask whether or not —state whether or not
Joyce Baggett any you made statements about what Maynard Anson intended do presence? in his She answered as follows:
A. All she said was that if anything goes wrong that she
would point finger Gary at Bullard. objected Defendant Mrs. Rousseau’s response. The trial court conducted a voir dire and then ruled that Mrs. Rousseau’s response admissible “under the rules of evidence.” We agree. The evidence indicates Ms. Baggett a co-conspirator statements, with the defendant. As co-conspirator, a her made in thereof, the course of the and in the conspiracy furtherance are against admissible as an exception hearsay defendant to the rule. (1983). Polk, State v. 308 S.E. 2d 296 generally, See (1982). Thus, Brandis North Carolina Evidence we § overrule defendant’s final assignment pertaining error guilt of his trial. phase
Sentencing Phase
I. Defendant contends that he is entitled to new sentencing hearing erroneously because the trial Mrs. court Linda permitted Kerik, Court, Clerk Deputy Superior County, Cumberland read to the of a two judgment contents unrelated criminal cases involving the defendant and two bills of indict- ment returned him those cases. prove
At sentencing hearing sought history mitigating circumstance he had no significant prior 15A-2000(f)(l). so, activity. criminal N.C. Gen. Stat. To do he in- Bobby testimony: Maynard, troduced the a Dunn following police officer, testified:
Q. you any Do criminal record that know Anson Maynard County? has Harnett IN THE SUPREME COURT know, I no in Harnett Coun- As as there is record
A. far Maynard. Anson ty concerning defendant, testified: mother of Maynard, Mrs. Martha Q. you any prob- given Have of those children ever year? until this lems up
A. Never.
Q. you had law or any problems Do know of he with the any got he into with the law to these occur- prior trouble we are here about? rences No,
A. I do not. where it came up A. I was about this incident thinking very first somebody in the head. That was where he shot if my life and I believe that I have ever heard that time so, known it. had been we would have that Brackett, minister, testified: Reverend Q. Maynard? you Have bad Anson anything heard about No, A. sir.
Q. Any family you member of the are aware ever any any criminal record? problem caused had No, A. sir.
Q. you what are they just Are solid is that good people, saying? Yes,
A. sir. defendant, an in-law of testified: Brewington, Mrs. Charles Q. May- you criminal that Anson anything Do know of he rumored that has been been involved in or either nard has County? in Harnett involved No, sir, of anything. I know A. don’t Maynard Q. you Do know of anything prior these matters be- fore the Court that Anson was involved in? No, sir, I
A. do not. The thrust of defendant’s evidence was he had never law, been in trouble with the no had criminal record in County; Harnett he any problem, had never caused had in any activity; never been involved illegal that his mother had true, anyone never shooting heard in the head if it was she would have heard it. evidence,
Based on this counsel defendant represented to the court that could infer and find could the following mitigating factors:
1. history The defendant has significant prior no criminal
activity. 2. The has county defendant no criminal record in his home
of Harnett.
3. The has good character. *18 4. The has in prison. defendant never served time 5. The defendant has three minor children whose mother them,
has abandoned and that is an defendant excel- fully and is for parent, responsible lent his children. good 6. The defendant was a and his neighbor contributed community. his church and services to job 7. The to his responsible prior defendant held a arrest indictment, inspector. in civil service a food as family, good 8. The and was a raised young normal man and adult. honorably
9. The defendant served the United States years. Navy for four
10.Any from the which arising other circumstance evidence value. mitigating deems have which tended to show his
In rebuttal of defendant’s evidence history criminal “significant prior and lack of a character good Kerik, Deputy Mrs. Linda Clerk of activity,” presented the State Court, County, concerning de- Cumberland who testified Superior County and activity in Cumberland prior fendant’s criminal question At point of his cases. subsequent disposition as by the follows: judgment prosecutor was introduced time, Q. this would move the introduction At the State 89. Exhibits No. 88 and into evidence State’s that, object your Mr. We Honor. Stewart: Overruled. Let each be received. Court: defendant, objections permitted trial court Over testify as Mrs. follows: Kerik Now, Kerik,
Q. you judgment Mrs. will read the 89. in State’s Exhibit marked Court Yes, A. sir. Objection.
Mr. Stewart: Overruled.
Court: Carolina, In County A. Cumberland. State of North Justice, Division. File Superior Court the General Court of North Caro- No. 75-CR-0925. State No. 75-CR-9347 File Maynard, Judgment male. A. Indian lina versus Anson court, In the Defendant open ap- in sentence. suspended charges of— charge trial peared upon for Honor, time, your at —objection Mr. Stewart: for. he was tried what Overruled.
Court: to kill deadly with intent weapon A. assault with —of larceny felonious injury in serious 75-CR-9347 inflicting *19 attorney, Joe represented and was his in 75-CR-0925 Chandler, and plea guilty and a of thereupon entered misdemeanor plea guilty a of tenders Court a of deadly plea and weapon a 75-CR-9347 with assault ex- The Court larceny in 75-CR-0925. guilty to misdemeanor IN THE SUPREME COURT voluntary amined the as Defendant of nature his plea a and finds as fact that pleas voluntary. the Defendant’s are Said examinations and are a findings recorded on separate of paper sheet and is of part of permanent records 75-CR-9347. Having pleaded guilty to the offense of misde- meanor assault with a deadly weapon and misdemeanor lar- ceny, which is a violation of the law and of of grade 75-CR-9347, misdemeanor. As to misdemeanor assault with a deadly it weapon, adjudged that the Defendant be im- prisoned years for the term of County two in the of Jail County assigned Cumberland to work under supervision of North of Department Carolina The Corrections. Court recommends Defendant for the work program. release 75-CR-0925, As to misdemeanor larceny, it is adjudged that the Defendant be imprisoned years for the term two of County in the Jail County of Cumberland to work assigned supervision under the of North of Carolina Department This begin Corrections. sentence is to at exporation [sic] of the sentence in 75-CR-9347. The of imposed execution however, suspended, years these sentences is for five upon conditions, compliance with the to which the De- following One, fendant gave assent: placed Defendant be probation period years of five under the usual terms Two, conditions of probation. pay that he into the office of of Superior the Clerk Court the sum one thousand five hundred dollars as restitution to Eugene Jacobs 75-CR- Three, 9347. that during probation he not own or have in his any possession deadly per kind weapon se whatsoever. Four, 14, 1975, immediately that he on August consent to a premises by search of representative Cumberland County any Sheriffs Department firearms found on his premises be turned over to and titled to Detective Bob Con- nerly with the consent of the Defendant for whatever [sic] Connerly or disposition use Detective desires to make [sic] Five, said that he not have in his or weapon. possession con- Six, any sume amount of intoxicating beverages whatsoever. any he not associate or communicate in during probation indirectly any way directly Jacobs or Eugene family member of his he not harass or intimidate family any way. Jacobs or member of his Eugene *20 Maynard v.
State Seven, All monies are due he the cost of court. pay that and out of his probation of his officer supervision under the office restitution to be into the of earnings paid with personal seventy-five dollars at the rate of Superior the Clerk of Court months, twenty and restitution to a of period month for per as Jacobs received Clerk dispersed Eugene be [sic] Defendant violates the event Superior Eight, of Court. the suspended the Court recommends probation, terms of immediately activated. sentence be 1975. day Signed Judge of August, This the fourteenth Smith, Defendant, Attorney Joe Donald L. for the presiding, State, Chandler, Attorney Byrd. Wade E. court then Mrs. Kerik to read to the permitted
The trial in these two cases. Mrs. Kerik further testified the indictments defendant was convicted on his plea that in June weapon, given suspended a concealed guilty sentence, carrying $150.00. fined rebuttal, testimony Also in the State offered the of Cumber- Conerly. County Sheriff Bob He testified that he investi- land 1975 assault defendant and that he gated charge against assault, Jacobs, Eugene Cape visited the victim of the at the Fear Valley where from three or four Hospital recovering Jacobs Conerly as an incident head wounds. also testified his transpired plea court at the time the defendant entered time, Conerly, the 1975 At the defend- charges. according judge weapons ant told the trial that he had no or ammunition at house, house, Conerly but that when went to the he found and judge back to the a .38 caliber brought presiding shotgun, a 7.5 and some No pistol, pistol, charges millimeter ammunition. as a were filed the defendant result of the search and the did not alter the sentence had been judge imposed. trial In answer to objection defendant’s multifaceted to the State’s evidence, rebuttal we basic law. begin two rules of The first scheme, right, concerns the State’s under our capital sentencing 15A-2000, to present G.S. rebuttal evidence. With respect issue, have we enunciated the following of law: principles
Our
capital
only
statute
re-
sentencing
permits but
quires juries to determine
sentence guided “by
a careful-
IN
SUPREME
THE
COURT
ly
statutory
set
take in-
defined
criteria that allow them to
to account
nature
the crime and the character of the
*21
63,
Johnson,
S.E.
accused.” State v.
298
at
257
2d
supra,
N.C.
statute, however,
610. This
in
case in
at
limits
State
its
the
only
chief
proving
aggravating
to
those
circumstances
listed
(e).
in
Bad
or
is
section
bad character
not listed as
reputation
may
an
circumstance.
the
not in
aggravating
Therefore
State
in
its case
chief offer
bad
evidence
defendant’s
character.
defendant, however,
A
may offer evidence of whatever cir-
may reasonably
cumstances
value,
be deemed to have mitigating
(f)
they
whether
or not
are
section
of the
listed
Johnson,
72-74,
v.
statute. State
S.E.
supra,
factor is admissible as that “the is entitled to have repeating pic- It bears full sentencing of a character as our statute capital ture defendant’s Silhan, will v. permit.” and constitutional limitations 273, 275 S.E. 484. at 2d at N.C.
A
resolution of defend-
pertinent
second rule of law
valid,
judgment
objections
properly
ant’s
is that a
authenticated
1-229, 1-236.1,
is
8-35,
North
law.
admissible under
Carolina
See G.S. §
15A-1340.4(e).
Indeed,
proving
method for
preferred
itself
judgment
conviction includes the introduction of the
prior
Silhan, 302
1. Judgments [11] Defendant concedes that the trial court was correct in per of the portion judg Mrs. Kerik to read to the that mitting of pleas guilty included defendant’s sentences ment which Defendant, however, objects to admission thereon. imposed conviction, of the parts judgment into evidence of the formal him. charges against containing original rule it is to read a bill agree general improper We that as a 15A-1221(b). However, when jury. to the See G.S. of indictment § as a plea, forms the basis of a original charge subsequent will reflect information judgment matter the court’s practical forth of the charge of indictment to set the nature from the bill of the of- including the date plea, which the defendant entered fense, perti- of the crime and other charged, the circumstances charged to both the crime nent information common This information forms which was entered. judgment upon crime which, earlier, is final as noted judgment integral part an during sentencing guilt phase at both the admissible that a authen- properly trial. We therefore hold capital of a phase relevant, may as rebut- be introduced otherwise judgment, ticated entirety jury. in its and read tal evidence 2. Indictments argues permitting
Defendant the trial court erred which the basis of his Mrs. Kerik read the indictments formed larceny. Assum- pleas misdemeanor assault and misdemeanor error, this was has failed to show ing arguendo thereby. Information the nature of the prejudice concerning origi- way charges properly jury by judgment nal before the which, held, entirety. as we have was admissible its The read- ing merely of the indictments was duplicative.
3. Additional Testimony [12] The issue here is whether the State, in rebuttal of defend history ant’s evidence which tends to show lack of significant may only criminal prior activity, judgments introduce not of con viction, but also evidence of the details of those crimes. This issue when, here, becomes particularly important as the evidence tends considerably that the crimes were prove more serious than the judgment pleas would reflect. 15A-2000(f)(l) We first note that to “criminal ac G.S. refers Thus,
tivity,”
activity
not to criminal convictions.
criminal
prior
Harris,
not limited to
convictions.
540 F.
prior
Supp.
Barfield
.
(E.D.N.C.
(4th
1983)
1982), aff'd,
Where a defendant introduces evidence of a the State may offer evidence in rebuttal which otherwise would not have
been
“Evidence which
competent.
might
otherwise be admis-
may
sible
a defendant
become admissible to
explain
rebut other evidence
Small,
the defendant himself.”
v.
put
State
(1980).
407, 436,
128,
272 S.E. 2d
145-46
N.C.
See State
(1949).
Black,
Q. Maynard, you you Mr. let me ask if on the 12th did March, 1975, day deadly shoot Jacobs with a Eugene weap- on, pistol, four times the head? No,
A. sir.
Q. You did not?
A. I did not.
Q. you What have been tried and convicted of? charged, —(Pause). ’75, IA. believe in ’71 to assault assault, Q. What sir? type they you really A. I don’t know how had it to tell truth. of,
Q. what? you What were convicted assault with you I A. With a I don’t know to tell gun, guess, truth.
Q. you assault? Who did
I A. don’t know.
Q. Sir? know, I
A. I don’t don’t remember. *24 Q. in the head four You did shoot Jacobs Eugene not times with a pistol? that. already
A. I have answered Q. you pistol? who assaulted with a You don’t recall IA. don’t.
Q. you for that offense? Were convicted For what? A.
Q. you us convicted of? you just The assault told were assault; bargain worked out on plea A. That I yes, got probation. sir.
Q. jail? you serve time Did No, sir. A.
Q. you were plea bargain, time of the And same too? you Did larceny. plead charged once, guilty according I I had been found A. believe record, larceny; yes, sir. it was my
Q. that? you jail serve time Did No, up until jail I no time never served A. sir. ain’t now. you
Q. who was assault- remember now it you can’t And with a pistol? ed
Q. you never car- have telling jury You are not here, your person No. 23 on State’s Exhibit pistol ried this that, before, you? are telling you? You are have truck; yes, sir. my it I have carried A.
Q. your person? concealed on you carried it Have ever it, pocket. my it in back they I had night got TheA. *25 Maynard State v. Q. only you Is that time have carried it concealed on your person? Yes,
A. sir. Q. Never carried pistоl any your this other time on per- son? No,
A. sir.
Q. always You your it in keep truck? Yes,
A. sir. Q. you your Did have it in on truck occasion which you just you testified to that assaulting were convicted for somebody with a pistol? No,
A. I sir. didn’t at have that one that time. Q. Well, you what pistol did use that occasion? A. I don’t remember.
Q. Sir?
A. I don’t remember. Q. twenty-two you And had long caliber rifle bullets you pistol, did not? you say Court: When “this” one pistol, you which are to? referring
Q. State’s Exhibit 23. marked truth, you A. To I tell don’t what remember was in it. more, jury,
Arguably, without could be misled this testi- mony, along testimony with the other out set above and the bare deadly convictions misdemeanors assault with a weapon, larceny, carrying a concealed weapon, believing into rebuttal, defendant did not have a In significant history. criminal properly produced evidence to show what the defendant actually did in prove order to the acts significant. were For Conerly Officer purpose, testified in part: THE IN SUPREME COURT Q. to these exhibits marked your attention Directing forth, set assault charge No. 88 and the State’s Exhibit occa- Maynard, you did have deadly Anson weapon, against charge? investigate sion to Yes, sir,
A. I did. *26 Q. you an to see opportunity Tell us whether or not had Jacobs? Eugene Yes, sir, I
A. did. Q. you saw Mr. Jacobs? you Do recall when it was shortly thereafter at Cape A. or midnight It was about Valley Hospital. Fear
Q. you what saw? you just If will tell us Wounds were I his head. A. saw several wounds about been shaved them had very because the areas around visible by hospital. at personnel
Q. there were? many how wounds you Do recall four, I now. right don’t recall A. were three or There of the testimоny concerning the condition Conerly’s Officer of the assault to to show the nature competent victim was assault its Contrary position, to defendant’s guilty. pled which defendant The the bill of indictment. admissibility dependent upon is not of whether relevant on the issue testimony highly Defendant, activity. criminal history prior any significant had law, with the in trouble he had never been first by injecting v. complains. he now State very of which invited the evidence 407, Small, 128. “Both the state and defend- 272 S.E. 2d 301 N.C. 436, at 146. 272 S.E. 2d trial.” Id. at entitled to a fair ant are and in ac- analogous evidence is such allowing This rule of the evidence produce the State allowing our rule cord with circum- aggravating support convictions prior facts 32
State
felony
of prior
involving
stance
convictions
violence or threat of
violence to a person.
by
The defendant cannot
stipulation otherwise foreclose the
proof
limiting
State’s
the State to the
1,
bare record of the conviction. State v. McDougall, 308
N.C.
308,
denied,
(1983);
S.E. 2d
cert.
[13] fendant’s
misrepresentation court prior case he weapons no at possessed his home was competent relevant in as bearing rebuttal defendant’s good character. This assign ment error is overruled.
II. [14] Defendant next contends that he was denied a fair trial because of improper statements the prosecutor during made clos argument. ing object Defendant failed to at point during the closing prosecutor’s arguments during the sentencing *27 of phase his trial. The transcript reveаls no argument advanced by prosecutor the so grossly improper as to the trial require Oliver, 326, to act judge ex mero motu. See State v. 309 N.C. 307 304; 446, 2d v. S.E. State 308 Craig, N.C. 302 S.E. 740. 2d III. [15] In his next assignment error, defendant contends that court in the trial erred failing jury instruct the the that burden proving beyond had the a reasonable doubt that the ag gravating substantially circumstances outweighed the mitigating sufficiently circumstances justify imposition penal death ty. Alternatively, defendant contends that trial court erred in instructing jury that it must return a verdict death if it that found aggravating circumstances the miti outweighed circumstances, effectively which gating defendant argues lowered proof. the State’s burden of recently
We have
readdressed
issue in State v.
1,
308
McDougall,
N.C.
State v. IV. [16] Defendant’s next contention is that the trial court erred by informing jury they not a were to reach unani required in mous decision their determination of factors. We mitigating outset, note at the that since the trial court did not preclude less than jury unanimous recommendation as to the miti factors, any in gating ambiguity only the court’s instruction 196, benefited the In Kirkley, defendant. State v. 308 302 N.C. (1983), S.E. 144 unanimously 2d we that “a jury held find [must] that a mitigating may circumstance exists it before be considered 218, for the 302 purpose sentencing.” Id. at S.E. at 2d 157. the trial failure Although judge’s to instruct concerning error, unanimity we hold that requirement it prejudicial because it was error favorable defendant.
V. [17] Defendant contends North Carolina capital murder scheme under 408 U.S. Georgia, is unconstitutional Furman 238, (1972), 346 subjective 33 L.Ed. 2d that it permits discretion and discrimination in con imposing penalty. death We have sistently rejected this and do so here. See State v. argument Oliver, 326, 2d 304. N.C. S.E.
VI.
[18]
Defendant
Pinch,
requests
N.C.
1,
this Court to re-examine our
292 S.E.
2d
and State v.
holdings
Reynolds,
(1982),
VII.
[19]
Defendant contends that
he was
denied
due
process
because
the trial
on him
placed
prove
mitigating
court
burden
by
jury in
circumstances
of the evidence. The
preponderance
by
respects
struction was correct
in all
and has been approved
306,
Barfield,
v.
298
State v. (1979). 47, I, 257 S.E. 597 v. 298 2d We Johnson N.C. and State of error. assignment this overrule
VIII.
been
jury
should have
en
also contends that
[20]Defendant
immunity by
State to a code
of
grant
to consider the
titled
This issue
whether he should live or die.
determining
fendant
by this
adversely
position
to the defendant’s
Court
was decided
243,
656,
denied,
II,
S.E.
cert.
305
292
2d
v. Williams
N.C.
State
(1983),
(1982),
denied,
IX.
[21]
statute G.S. §
Defendant
15A-2000 is
argues
unconstitutional, and,
the North Carolina death
therefore,
penalty
im
of
in this case was unconstitutional.
position
penalty
the death
upheld
This
numerous occasions has
the constitutionali
Court
in North
ty
penalty
death
statute
Carolina.
394,
(1981),
denied,
I,
284
437
cert.
456
Williams
304
S.E. 2d
N.C.
306,
(1982);
Barfield, 298
X. [22] § factor 15A-2000(e)(9), Defendant contends that the murder which allows “especiаlly Court’s to find as an heinous, interpretation atrocious, aggravating G.S. unconstitutionally has been rendered and overbroad vague cruel” I, of that statute in v. Oliver interpretation this Court’s (1981). 28, 183 We have our 302 274 S.E. 2d reviewed inter 15A-2000(e)(9)in I have of G.S. Oliver and we conclud pretation § entirely is that our consistent with mandate interpretation ed Godfrey Georgia, U.S. v. Georgia, of Furman (1980). assignment This of error over L.Ed. 2d U.S. ruled.
Proportionality death, necessary it is defendant’s sentence affirming [23]In record, 15A-2000(d)(2), to G.S. pursuant us to review the jury’s finding the record supports determine whether *29 IN THE SUPREME COURT circumstance; aggravating whether the sentence imposed was un- der the influence of any or passion, prejudice arbitrary other factor; and whether the sentence of death is excessive or dispro- cases, portionate penalty to the in imposed similar considering both the crime and the defendant.
After a careful and review thorough transcript, of the record and the appeal, briefs we find that parties, record fully supports jury’s written findings aggravation. We fur- ther find that the death sentence was not imposed under the in- fluence of passion, prejudice, any or arbitrary other factor and is record of devoid indication that such impermis- defendant, sible influences were a factor in the sentence. The throughout the course of his ably trial and on appeal, by counsel. His represented case was argued vigorously and thoroughly. of Our review record transcript, and briefs no phase reveals error at either of his trial which warrants a new trial or sentencing hearing.
Finally,
must
we
determine whether the sentence of death in
this case is excessive or disproportionate
penalty
to the
imposed
considering
similar cases
both
crime and the defendant.
Williams,
47,
335,
denied,
See State
308 N.C.
S.E. 2d
cert.
(1983).
denied,
78 L.Ed. 2d
reh.
State v. witness, pursuant plea arrange- in to potential which a Carolina ment, the at trial and was testify against defendant agreed had testimony. solely purpose preventing for the murdered which compelling policies encourage witnesses upon Based upon based our deci- in criminal trials without fear and testify 510, 306, Barfield, 259 S.E. 2d and State v. 298 N.C. sions in State 304,3 Oliver, 307 S.E. 2d we hold that defendant's v. 309 N.C. nor excessive con- disproportionate of death is neither sentence crime this defendant. both the sidering No error. in as to Phase and concurring Frye result Guilt
Justice Phase. dissenting Sentencing as to majority the defendant has agree
While I
the
testimony
of the
of Assist
by
no
the admission
prejudice
shown
decedent,
the
Attorney
Stephen
Powell
District
Jean
ant
testimony . . .
truthful
give
her “that he would
Henry,
told
unnecessary
Maynard,” I find
to further extend
Anson
it
against
Vestal,
180 S.E. 2d
in State
rule enunciated
(1973),
(1971),
denied,
In of defendant’s evidence rebuttal criminal history “significant prior lack of a character and good Kerik, Clerk Deputy Mrs. Linda activity,” presented the State IN THE SUPREME COURT [3.11 State v. Court, County, concerning who testified de- Superior Cumberland County activity in Cumberland prior fendant’s criminal of his Over de- objections cases.1 subsequent disposition fendant, Kerik permitted court Mrs. to read to trial only portion of the which included defendant’s judgment thereon, imposed permit- the sentence but also plea guilty and containing portions judgment her to read those ted him. charges Since these were based on original against charges statements, ex parte I believe their admission de- fendant error. valid, judgment generally A ad- properly authenticated 1-229, law. See G.S. statutory under
missible North Carolina §§ 15A-1340.4(e). 1-236.1, 8-35, However, where an otherwise admis- irrelevant, incompetent highly preju- document contains sible material, of the document should be incompetent part dicial Jacksоn, See State jury. and not read to N.C. deleted (1975); 481-82, 123, also See 215 S.E. 2d 130-31 (1972) (which Spillars, 185 S.E. held that a 2d support hearsay of it are warrant and the affidavit filed search deprived their into the defendant of his introduction evidence confrontation). right constitutional *32 to either I note that the State not introduce of required judgments sentencing hearing the into evidence at the because already the defendant had admitted his convictions of misde- the of trial. Had guilt-innocence phase meanors the the the during stop been content to with the introduction into evidence of guilty pleas, of the the their ac- portion judgments containing that thereon, the by entered there the court sentences ceptance for an of based on assignment would have been no basis error However, only of the the trial court over- reading judgments. felony reading to of the objections charges defendant’s ruled by but the error the in- jury compounded permitting then part as a of the State’s 1. This would not have been admissible case- evidence factor, aggravating was not convicted of a to show an since the defendant in-chief 15A-2000(e)(3) aggravating felony. lists as circumstances the one of G.S. § “(3) felony involving following: previously had convicted of a The been defendant deadly person.” weapon with is a or threat violence to Assault the use misdemeanor, deadly weapon with intent kill and G.S. 14-33. Assault with a § injury deadly weapon inflicting both felonies. G.S. with a serious are assault 14-32. § IN THE SUPREME COURT entirety in their to be These jury! dictments read indict- past ments concerned aсcusations of crimes defendant remotely which were not even related to the for which charges defendant was trial. standing The indictments were not relevant by in this case. The sentencing reading the indictments Mrs. value, i.e., any probative Kerik did not have the indictments did not tend to or prove disprove any fact or factor relevant to a (life determination of the death) or appropriate imprisonment sentence Furthermore,
to be imposed upon defendant. the indict- factor, ments were not of a probative mitigating aggravating and, they may to the extent probative, have been considered probative their value was their outweighed potentially preju- Therefore, dicial effect. reading of the indictments to the was error.
I also note that the indictment in file No. 75-CR-9347 is fac- tually alleges inaccurate. It that: A. Maynard, unlawfully willfully feloniously
Anson did kill, Jacobs, assault with Eugene deadly intent with a weapon, to wit: a small caliber serious pistol, inflicting bodily injury wit: wounds to the head the said shotgun Eugene added.) . . . Jacobs. (Emphasis factually The indictment inaccurate because it alleges defendant shot thereby the victim a small caliber in- pistol flicting shotgun wounds to the head of the victim. Shotgun wounds do not result from shot with a being pistol. small caliber This inaccurate statement in the indictment further illustrates indictments, unreliable, why hearsay which are ex state- parte jury. ments should not read to the be
Furthermore, this indictment in- alleged to kill tended the victim and that defendant inflicted serious bodi- true, ly injury to allegations the victim. Were either of these felony, defendant would have been 14-32. guilty of a G.S. How- § ever, guilt felony defendant denied his him charged against misdemeanor, entered plea guilty to a 14-33. This G.S. *33 by was the trial court. plea accepted having accepted That court deadly the to misdemeanor guilty plea weapon assault (without bodily kill inflicting injury), intent to and without serious sentenced the it having accordingly, defendant would be reversible error a violation of defendant’s highly improper, IN THE 40 SUPREME COURT
State v.
or
to
for a later court
against
jeopardy
double
privilege
felony
of the
guilty
was
fact
reconsider whether the defendant
kill,
deadly
inflicting
with intent
weapon
of assault with a
set of facts.
bodily injury
out of the same
growing
serious
Cf.
266-72,
Silhan,
275 S.E.
at 480-83
double
(applying
302
at
2d
N.C.
sentencing proceedings);
jeopardy principles
capital
652,
1004,
181,
vacated,
Frazier,
185 S.E.
409 U.S.
93
2d
N.C.
(1972),
remand,
99,
453,
195 S.E.
For all of would hold trial allowing sentencing clerk at the deputy hearing court erred (1) jury: contain- parts judgment to read to formal felony to which the defendant charges against defendant ing (2) grand jury of not indictments pleas guilty, had entered offenses to which he had en- alleged the defendant guilty. tered of not pleas prej- is whether the trial court’s error was
The next question case, I the facts of this believe that it was. As udicial. Under noted, testimony concerning a improperly the trial court admitted in which with felonious- charged bill of indictment the erroneous ly Following Jacobs the head. shooting Eugene Conerly, the witness testimony, the above Officer admission of testify jury, at grand permitted who before appeared (1975), 14-72 which was in effect at the time defendant 2. Pursuant to G.S. § larceny plea guilty, between felonious and misde- difference entered larceny (presently $200 taking goods no more than was the valued at meanor $400). *34 IN THE SUPREME COURT that he had Jacobs the sentencing hearing Eugene the visited relevancy The of bandaged and had seen Jacobs’ head. hospital testimony was on the admitted bill improperly officer’s based this stated was the victim of Eugene of indictment which Jacobs Further, charged. felonious with which the assault defendant testimony introducing the officer’s was to cor- purpose the of Finally, of the improperly roborate admitted bill indictment. testimony the officer’s as a convenient indictment and served prosecutor’s making argu- for the use in an improper closing basis jury to the on the question ment sentence.
In penalty, prosеcutor suggested the death seeking was, by assault like the jury that earlier committed trial, attempt murder for which defendant was on an to eliminate The testify witness to defendant. against prosecutor a prepared has to “[y]ou pled guilty know the fact that he argued, previously larceny in the that he committed a shooting someone head had very I nothing Doesn’t sound find the record with. it familiar?” fact, In argument. an the defendant had denied support to such by original misdemeanor allegation, plea this both his phase of the testimony guilt-innocence and at the charge, no defendant’s motive regarding trial. There is evidence present Indeed, in the earlier assault had defendant prior for the assault. witness, unlikely that he to eliminate a it attempting been guilty to a misdemeanor permitted plead would have been sentence. a suspended receive
Thus, testimony con- the use admitted through improperly defendant, the State was indictment a bill of cerning and to corroborating suggest witness to introduce allowed this the second time de- arguments closing ad- The erroneous convicted of a similar crime. had been fendant for the as basis admission of the indictment thus served mission for prose- a means provided evidence and damaging other arguments to harmful improper potentially to make cutor ef- that the combined say I am prepared Accordingly, jury. prosecutor’s and the erroneously testimony admitted fect tip were not sufficient based thereon argument improper imprisonment between life jurors in the minds scаles Thus, the error was I would hold that defendant. death prejudicial.
Faulkner v. New Bern-Craven Bd. of Educ. For all of the above I reasons vote to uphold defendant’s con- *35 murder, viction of first degree vacate the sentence of death and remand the case for a new sentencing to be hearing conducted to G.S. 15A-2000 15A-2003. pursuant through §§ joins Justice Exum in this dissenting opinion.
TERRY FAULKNER v. NEW BERN-CRAVEN COUNTY BOARD OF EDUCA- TION
No. 24PA84 (Filed 1984) 5 June § judicial 1. Schools 13.2— teacher review —whole record test dismissal — judicial The standard of review of a board of education’s dismissal of a 150A-5K5). career teacher is the “whole record” test set forth in O.S. 2. Schools 13.2— dismissal of career teacher for excessive use of alcohol concluding Defendant board of education did not err that a course of by involving property conduct the use of alcohol a career teacher on school hours, students, during being school the same obvious to the teacher’s parents personnel repeated warnings, and to other school after continued 115C-325(e)(l)f, meaning was “excessive” within the of G.S. and the board acted lawfully dismissing teacher for excessive use of alcohol. dissenting. Justice Exum Frye joins dissenting opinion.
Justice in the review, 7A-31, discretionary On pursuant N.C.G.S. decision of the Court of 309 S.E. Appeals, App. 2d (1983), setting aside the judgment entered favor of the J., Reid, by said judgment being filed out of term on 16 Court, 1982 in August County. Superior Heard CRAVEN Supreme May 1984. Court 17 September Terry On Faulkner was suspended from by a tenured teaching position County the New Bern-Craven Board of Education. The grounds by the dismissal listed Ben (1) Quinn, D. Board of Education Superintendent, were: habitual (2) alcohol, 115C-325(e)(l)(f); or excessive use of N.C.G.S. failure to fulfill the responsibilities imposed upon duties and teachers