State v. Montgomery

STATE v. MONTGOMERY (1992)]

[331 STATE OF NORTH CAROLINA RODNEY LEE MONTGOMERY

No. 265A90 (Filed 1992) 25 June (NCI4th)— 1. Homicide 253 degree first murder —premeditation sufficiency of evidence deliberation — The State’s evidence was sufficient ver- dict finding defendant guilty of first degree murder on the theory that he killed the victim with premeditation and delibera- tion where it tended to show that about one hour before the found, body victim’s defendant was in the parking lot committed; next apartment to the in which the murder was the victim did not know defendant and defendant had never murder; been inside the apartment before day victim cleaned her eyeglasses on a regular basis and had cleaned murdered; day them on the she was a fingerprint lifted from a lens of the glasses victim’s found in the apartment matched one of defendant’s fingerprints; pubic hairs consistent with those of defendant were found in front of and on the sofa in the apartment; a butcher knife with human blood and fibers consistent with fibers taken from the sweatshirt the victim was wearing at the time of her death was found in a location between the apartment victim’s and the house where defend- murder; ant was residing at the time of the the victim had wounds; nine different stab wounds and four cutting two wounds back, were inflicted on the victim’s which permitted an in- ference that the victim helpless or had been felled when wounds; the murderer inflicted some of the no evidence of provocation was presented; the murderer and victim initial- ly had contact room living based upon physical evidence presented; and the fact that the victim’s body was found the bedroom suggests premeditation on part the murderer. 2d,

Am Jur §§ Homicide 454. Presumption of deliberation premeditation or from cir- cumstances surrounding killing. ALR2d 1435. IN THE SUPREME COURT — (NCI4th) §§

2. felony —underlying Homicide murder — robbery attempted rape sufficiency felonies of armed of evidence jury State’s evidence was sufficient to ver- support finding

dict defendant of first guilty degree murder under the theory that defendant killed the victim while engaged in the underlying felony robbery of armed it where tended to show that pocketbook of one of the victim’s roommates had been rifled through at about time of the murder and money it had contained had been stolen. The evidence was also sufficient for the to find guilty defendant based felony on the underlying attempted rape where it tended to show that the victim was found with her sweatpants inside on; out and without panties the victim’s roommates testified that the victim was underwear wearing earlier that evening and was generally meticulous about her appearance; the couch on which the victim had been sitting when her roommates murder; left was in disarray after the and five pubic hairs couch, consistent with those of the defendant were found on the which tended to show that defendant had removed his pants while in apartment. 2d, 71-75, §§

Am Jur Homicide 454. — (NCI3d)— Rape 3. and Allied § Offenses 18.2 attempted rape sufficiency of evidence

The State’s evidence was sufficient to jury ver- dict finding guilty defendant of attempted first degree rape where it tended to show that the victim did not know defend- ant and defendant had never been in the victim’s apartment; victim, body stabbed, of the who had repeatedly been was found in a bedroom of the apartment; when the victim’s murder, roommates left on the evening of the the victim dressed in sweatpants was on the sitting sofa reading newspaper on; with found, her eyeglasses when the body victim’s her sweatpants were inside out and she was not wearing panties; there were bruises and abrasions on her knees in addition to the body; stab wounds to her the sectional sofa on which the victim had been sitting pulled apart and the coffee moved; table front of the sofa had been panties victim’s couch; were wadded up on the the victim’s eyeglasses were defendant’s; smeared with fingerprints, one of which was THE IN SUPREME COURT police found hairs pubic consistent those defendant couch; in front on the expert of and testified that because hairs, was likely pubic condition that the region couch; person who left exposed directly them was to the end, and several hairs had flesh indicating a forceful removal. 2d, 25, 26, 53, §§

Am Rape Jur 54. (NCI4th)— Burglary 4. Breakings and Unlawful degree first burglary —sufficiency of evidence

The evidence was to support sufficient defendant’s convic- tion of degree first where it burglary tended show that defendant not an acquaintance any was of the victim or roommates; her when the victim’s on roommates left the eve- ning the victim was they found murdered their apartment, door; closed the front the in the couch room was in living murder, disarray the after the victim suggesting that was surprised by defendant when he apartment entered the be- tween 10:30 and 11:00 p.m. p.m.; money and defendant stole pocketbook from a after he entered the thus apartment, per- mitting the inference that he had the intent larceny to commit the he apartment time entered the alleged the indictment. 2d,

Am Jur Burglary §§ 47. (NCI3d)— § Robbery robbery 5. 2.2 —ownership prop- armed erty-conjunctive —no fatal indictment variance indictment, There no fatal was variance between the the proof robbery and the instructions in an armed case where money indictment that charged defendant took from the victim, person and presence the court instructed the jury that the State must that took prove property defendant from the person the victim or took of another property presence, the victim’s only and the evidence showed that money was taken from the victim’s since presence, the use conjunctive of a in the indictment does not require prove various alternative matters alleged. 2d, §§

Am Jur and Indictments Informations 214. THE IN SUPREME COURT (NCI3d)— robbery sufficiency Robbery § 6. 4.3 armed of evidence — in a prose- State’s evidence was sufficient robbery dangerous weapon cution for where tended custody purse to show the victim or had of a possessed roommate; money and its her was stolen belonging contents from in the where purse was found bedroom stabbed; victim victim was threatened or en- by the knife stab her when the dangered used to robbery occurred. 2d, 5, 51, 62. Robbery §§

Am Jur (NCI4th)— § 7. Error new Appeal and trial —two votes for one basis —three votes for different basis

A degree defendant convicted of first murder is awarded Supreme a new trial where two support members of Court solely the result of a new trial on the basis trial court’s instruction reasonable doubt was unconstitutional solely three members that result on the basis potential juror that a improperly prose- excused cutor of his origin. because national 2d,

Am Appeal Jur and Error 963. Justice FRYE in result. concurring Chief Justice Exum Justice join and WHICHARD concurring opinion.

Justice MEYER dissenting. LAKE joins Justice in this dissenting opinion. Appeal right pursuant as of to N.C.G.S. 7A-27 from a judg- ment a sentence of death the imposing upon defendant for his murder, J., Downs, by conviction of first-degree entered the Court, County, Superior on June 1990. The de- MECKLENBURG fendant’s bypass Appeals motion to of his appeals Court judgments robbery from additional for first-degree burglary, with dangerous a and weapon, attempted first-degree rape was allowed Court, by Supreme appeals those were consolidated with the defendant’s murder appeal conviction. Heard Supreme Court on 10 March 1992.

IN THE SUPREME COURT v. MONTGOMERY

STATE General, H. Joan Herre Lacy Thornburg, Attorney by Byers, General, Deputy Spalding, and Valerie B. Assist- Special Attorney General, Attorney ant State. for

Kenneth the defendant-appellant. J. Rose for MITCHELL, Justice. murder,

The robbery defendant was convicted of first-degree with a dangerous weapon, first-degree burglary, attempted first-degree rape. The recommended a sentence of death for thirty- the conviction of murder. first-degree The defendant raised assignments appeal. six of error on We do not reach all these because, below, assignments of for the stated error reasons we the defendant a new trial. grant

Some of the State’s evidence at trial tended show the follow- Piccolo, Saturday, January On ing. Kimberly a student Charlotte, the University Carolina at and her North room- apartment university mates invited several friends to their near the dinner, campus for dinner. After Piccolo’s roommates and their went at an party apartment friends to a held adjoining complex. Piccolo declined their invitation to attend. When Piccolo’s room- left, sweatshirt, Piccolo a wearing sweatpants, mates maroon sitting and socks and was on the couch with her eyeglasses on reading Piccolo was unable to see well without newspaper. glasses. her Piccolo alone when her apartment friends left. Webb, Christy

That same around 10:00 a evening p.m., neighbor Piccolo, boyfriend, drove her up apartment her Steve car, As walking away Aumer. Webb was from her she was stopped a man wearing who was to which green army jacket identification badge was attached. man asked Webb for change twenty-dollar Webb any bill. stated that she did not have change. The man if she any change upstairs then asked had car, apartment. point got her At that Aumer out looked eye, any man in have change. and stated Webb did not Aumer testified at trial defendant was man he saw the parking evening. lot that At 11:00 roommates returned to the p.m., apartment. Piccolo’s they purse that the a had Upon entering, noticed contents of been They upstairs body on the floor. went Piccolo’s spilled found many They on the bathroom floor. She had been stabbed times. found, immediately police. body called the When Piccolo’s she sweatshirt, out, was dressed in a which were inside sweatpants socks, she wearing panties. but was not An nine autopsy showed Piccolo had received stab wounds chest, arm, back, that were clustered her and abdomen and several defensive wounds on her hands. One stab wound went her completely through right hand. The cause of death was loss of blood.

The couch on which Piccolo had been when her sitting room- mates pushed had left her had been apart. panties Piccolo had been wearing evening earlier that were found on the couch. A butcher knife missing from the kitchen. eyeglasses Piccolo’s were found on the coffee A fingerprint table. was lifted from one lenses; this print matched a print defendant’s left couch; ring finger. pubic Five hairs were found on the these hairs were consistent with those of the police defendant. The later found butcher missing parking knife lot located between Piccolo’s apartment and the house by owned the defendant’s sister where the defendant was staying the time of the murder. Blood and fibers consistent with fibers from Piccolo’s sweatshirt were on the knife. The defendant’s brother green army owned a to which jacket University of North Carolina identification badge was attached.

The defendant at presented trial alibi evidence. Several of the defendant’s relatives testified that he was with them the entire January of 21 evening 1989.

Other evidence introduced at trial is discussed at other points opinion where pertinent to the issues raised defendant.

The defendant assigns as error the trial court’s denial of his motion to dismiss the first-degree murder charge insufficiency of the evidence. The defendant contends that the presented State insufficient evidence to a finding that he killed the victim with premeditation and deliberation or that he killed her while he was engaged one of the underlying felonies of first-degree burglary, robbery with a dangerous or weapon, attempted first- degree rape. Small,

In 328 400 S.E.2d 413 we described the appropriate standard of review as follows: 565 v. MONTGOMERY

STATE (1992)] [331 insufficiency ground on the a motion to dismiss

“On evidence, there court is whether for the question charged element of the crime evidence of each is substantial State v. of such crime.” perpetration of the defendant’s and (1983). 258, 528, 533, Bates, 262 308 S.E.2d 309 N.C. most light the evidence trial court must view [T]he State, the benefit of the State giving favorable to the . If from it. . . inference to be drawn every reasonable direct, circumstan- there is substantial evidence—whether tial, charged that the offense finding support or both—to committed the defendant has been committed and it, the motion to dismiss jury the case is for the should denied. be 377, Locklear, 349, 358, S.E.2d 382-83 v. 322 N.C. 368 omitted). (1988)(citations evidence, Further, defendant’s “[t]he State, taken into considera- to the is not to be unless favorable 862, 60, 66, Jones, 184 S.E.2d State v. N.C. tion.” (1971). credibility is for of the witnesses’ The determination 358, Locklear, 368 S.E.2d at 383. See 322 N.C. at jury. not warrant dismissal discrepancies do “[Contradictions Earnhardt, v. they to resolve.” State are for case— (1982). 649, 296 S.E.2d 307 N.C. 415-16, 180-81, Small, quoted 400 S.E.2d at

State v. 328 N.C. at 1, 19, Quick, 190-91 405 S.E.2d in State v. “ the evidence function is to determine whether ‘The trial court’s guilty the defendant will a reasonable permit inference ” — Quick, 19, 405 S.E.2d at 329 N.C. at charged.’ of the crimes (1991)). Vause, 231, 237, 328 N.C. (quoting findings ^[1] Under standard, defendant there was substantial killed the victim with premeditation, evidence to one her the course of during and that he killed and deliberation to show The State’s evidence tended underlying felonies. eyeglasses of the victim’s lifted from a lens fingerprint that a fingerprints. the defendant’s matched one of apartment found had the defendant and the defendant The victim did not know day of the murder. apartment inside the before never been and had cleaned her on a basis glasses regular The victim cleaned About one hour before day on the she was murdered. them found, in the lot parking the defendant was body victim’s committed. The in which the murder was apartment next to the THE SUPREME COURT IN STATE MONTGOMERY those defendant hairs consistent pubic found police knife A sofa in the butcher apartment. in front of on the and from with the taken fibers fibers with human and consistent blood her death was at the time of wearing sweatshirt the victim the the apartment victim’s and found in location between the was murder. at the time of the residing where the defendant was house is sufficient evidence that When whether there determining deliberation, the court and killing premeditation was done alia, consider, following: tending to show the may inter evidence (2) (1) deceased; the the the conduct provocation part want (3) killing; and after the statements of the defendant before and and deceased has been felled dealing the lethal blows after the (4) in a killing evidence that the was done brutal rendered helpless; (5) manner; the wounds. the nature and number of victim’s (1991); 231, 238, 57, Vause, 328 62 See State v. (1990). 258, 81, Bullock, 253, v. 388 84 State 326 N.C. S.E.2d which The of the brutal manner in presented State evidence the victim was killed. The victim had nine different stab wounds her The showed repeated stabbing and four wounds on arms. cutting were on the brutality the of the murder. Two wounds inflicted back, inference that the victim was permitted victim’s which an murderer some of helpless or had been felled when the inflicted v. provocation presented. the wounds. evidence of was No Robbins, 465, 279, denied, 918, cert. 484 319 N.C. S.E.2d U.S. (1987). initially The 98 L. Ed. murderer and the victim 2d contact in room the evidence living upon physical had based body victim’s found the bedroom. The move presented. The was suggests ment of the victim from the room to bedroom living Jackson, State v. premeditation part on the the murderer. (1986), grounds, on other S.E.2d 814 vacated U.S. (1987). L. 2d 133 Ed. ^[2] Substantial evidence was introduced from which the could felony-murder theory under with rob guilty find defendant Robbins, felony. bery underlying pocketbook The of Denise roommates, rifled at about through one victim’s had been murder, it had had money the time of the and the contained been was also show that the victim stolen. evidence tended to The victim found with attempted murdered during rape. out without on. The victim’s sweatpants panties her inside earlier wearing roommates that the victim was underwear testified IN THE SUPREME COURT evening generally appearance. and was meticulous about her The couch on which she had been when her sitting roommates in disarray left was after the murder. Five hairs consistent pubic couch, with those of the defendant were found on the which tended pants show that defendant had removed his while apartment. argues

The defendant the evidence case present no stronger than that other cases where the court dismissed murder first-degree charges. Specifically, upon defendant relies Reese, 319 N.C. 353 S.E.2d 352 and State Cutler, Cutler, 271 N.C. 156 S.E.2d 679 In Reese and however, there physical tying was no evidence the defendants to case, the actual murder scenes. In the present defendant’s fingerprints apartment. were found the victim’s The defendant was also identified as in being apartment complex approx- at imately the time of the murder. hairs consistent with Pubic those of in the defendant were found We conclude that apartment. Here, Reese and Cutler are distinguishable present from the case. the evidence was sufficient to survive the defendant’s motion to charge theory dismiss the murder both on the first-degree premeditation felony-murder theory. and deliberation and on the ^[3] The defendant next assigns as error the trial court’s denial charge his motion to dismiss the of attempted first-degree rape insufficiency of the evidence. We and conclude that disagree the evidence sufficient for charge was submission of that In jury. prove attempted rape, order to the State must first-degree prove the defendant had the intent to commit the crime and beyond preparation, committed an act which went mere but fell Boone, v. first-degree rape. short of actual commission of the State (1982). 198, by presented 307 N.C. 297 S.E.2d 585 The evidence the State tended to show that the victim did not know the defend in apartment. ant and the defendant had never been the victim’s murder, the victim’s left on the evening When roommates in was on the sofa sweatpants sitting reading the victim dressed body victim’s newspaper eyeglasses with her on. When the found, were and she was not sweatpants wearing was her inside out were and abrasions on her knees addition panties. There bruises body. to her The sectional sofa on which to the stab wounds apart sitting evening pulled victim had been earlier The of the sofa had been moved. and the coffee table front The victim’s were wadded on the couch. panties up victim’s with of which was the fingerprints, were smeared one eyeglasses The found hairs consistent with those police pubic defendant’s. the couch. An testified expert of the defendant front of and on hairs, likely because of the condition of the it was that the directly them person exposed who left pubic region Also, end, several of the hairs had flesh at the in- to the couch. a forceful removal. dicating by a finding juror

Such evidence would reasonable A surprised struggle during that the defendant the victim. occurred panties which the defendant removed the victim’s sweatpants or her. The defendant took the victim raped attempted rape upstairs where he stabbed her numerous times and her replaced sweatpants present inside out. Such substantial evidence case formed a sufficient basis from which a reasonable could infer that the defendant committed attempted first-degree rape. Harris, (1987); generally See State 319 N.C. 354 S.E.2d 1, 12, 308, 315-16, McDougall, State v. 308 N.C. 301 S.E.2d cert. (1983). denied, 464 78 L. U.S. Ed. 2d 173 of his motion to dismiss the ^[4] defendant next assigns charge as error the trial court’s denial first-degree burglary for insufficiency of the evidence. is the First-degree burglary breaking or of an entering occupied dwelling night intent to commit Noland, 1, 13, felony therein. denied, (1985); cert. 469 U.S. 84 L. Ed. 2d 369 N.C.G.S. 14-51 evidence presented Substantial tended to show that the defendant broke into or entered the apart by ment while it was the victim between 10:30 and occupied p.m. 11:00 The evidence tended to show that the p.m. defendant was any acquaintance not an of the victim or of her roommates. When murder, they the victim’s roommates left on the evening the apartment. living closed front door The couch the murder, disarray the suggesting room was after that the victim by was the defendant when he entered the surprised apartment. The criminal intent of the defendant at the time he entered the could be inferred from the acts he committed after apartment Williams, 579, 585, State v. he entered. S.E.2d (1992). alleged The indictment the defendant he had against larceny the intent to commit at the time of the or breaking entering. to show that the defendant stole tending The State’s evidence he money pocketbook apartment from a after entered STATE v. MONTGOMERY substantial evidence that he had the intent larceny to commit when he entered the The apartment. trial court did not err in denying the defendant’s motion to dismiss first-degree burglary charge. ^[5] The defendant next assigns two errors with respect to the charge robbery with a dangerous weapon. argues defendant that the trial court’s instructions to jury varied from the indict ment. The trial court instructed the that the State must prove that “the defendant took the property from the person of Ms. Piccolo or took property of another in the presence of Ms. Piccolo.” The indictment in pertinent “Rodney stated part Lee steal, take, Montgomery unlawfully, willfully did feloniously carry away another’s personal property, United States curren $160.00, cy of the value of approximately from the person and presence Kimberly Ann . . .” Piccolo. The defendant argues the State presented no evidence that the money was taken Piccolo; from person only of Ms. presented evidence tending to show that money was taken from presence. her

The use of a conjunctive the indictment does not require prove State to various alternative matters alleged. Williams, 337, 355, conclude, 314 N.C. We therefore, indictment, there no fatal variance between the trial, the proof presented at and the trial court’s instructions to jury. ^[6] The defendant also contends that the evidence was insufficient robbery submission of the with a charge dangerous weapon jury. Robbery with a dangerous weapon taking another, of personal property from the or person presence of use or use dangerous weapon, whereby threatened of a the victim’s Rasor, life is endangered or threatened. State 319 N.C. 14-87(a)(1986). (1987); S.E.2d N.C.G.S. There was substan tial evidence that the victim possessed custody or had of the purse and its contents. $180.00 The evidence also tended show that was stolen from the purse that was found in the where bedroom the victim was stabbed. The victim was threatened or endangered We, by the knife used to her robbery stab when the occurred. therefore, conclude that the evidence was sufficient to sub require mission of the charge robbery dangerous with a to the weapon jury. ^[7] The defendant next assigns as error the trial court’s instruc tion the jury to the term “reasonable doubt.” The defining defend ant regard contends that the instruction in this given case nearly identical instruction found unconstitutional Louisiana, (1990) ---, curiam). Cage v. 498 U.S. 112 L. Ed. 2d 339 (per defendant requested written motion that the trial court

use the pattern jury instruction on reasonable doubt in its charge to the jury. The trial court has duty to define the term “reasonable doubt” when requested to give such an instruction Shaw, 366, (1973). jury. to the State v. 284 N.C. 200 S.E.2d 585 Trial courts are required use exact formula when instruct- Watson, 159, ing 167, reasonable doubt. State v. 294 N.C. (1978). 440, S.E.2d Where the trial court undertakes to define doubt,” however, the term “reasonable its instruction must be a Wells, correct statement of the law. State v. 290 N.C. (1976). S.E.2d 325 The State contends that the defendant did not object to the and, therefore, instruction this assignment is not properly conclude, before us however, for appellate review. We defendant properly preserved the issue raised this assignment for appellate review.

The defendant submitted a written request to the trial court to give the reasonable doubt instruction contained in the pattern jury instructions. N.C.P.I. — Crim. 101.10 Understandably, the trial court instead gave an instruction taken directly from State Williams, 47, 63, 335, 345-46, denied, 301 S.E.2d cert. 464 U.S. 78 L. Ed. 2d 177 a case years decided seven Cage before which the question decided in Cage was not before us. The defendant’s written request for a particular instruc tion on reasonable doubt met the requirements of Appellate Rule 10(b)(2) and constituted a sufficient objection to the different in struction actually given to preserve this issue appellate review. Smith, 287, 290, (1984); 311 N.C. 316 S.E.2d see Pakulski, 562, 575, (1987) also State v. 319 N.C. 10(b)(2)). (applying the “spirit” of Appellate Rule case,

In the present the trial court failed give the defend- ant’s requested instruction on reasonable doubt and instructed the jury in the following manner: doubt,

Members of jury, a reasonable or at least a defini- tion Court, of that is acceptable by our Supreme [sic] is that vain, it doubt, is not a imaginary or fanciful but rather is one based upon sanity or saneness rationality. And COURT

IN THE SUPREME MONTGOMERY STATE v. (1992)]

[331 defend- must be satisfied that when it is said doubt, you that must it means reasonable beyond a guilt ant’s moral to a convinced or satisfied entirely or fully satisfied be considering after charge, and of the truth of certainty evidence, the lack of or all the weighing and comparing and be, evidence, are left may your if minds the case that as faith have say you abiding that you cannot such condition more of one or guilt defendant’s certainty of the to a moral circumstances, you then under those charges, those or all of Otherwise, you do not. doubt. a reasonable have doubt, in the ad- employed term is A reasonable honest, law, misgiv- substantial is an of criminal ministration to convince insufficiency which fails by the ing, generated one as to satisfy your reason and conscience your judgment accused. of the guilt by the in- suggested is not a doubt A doubt reasonable counsel, legitimately by your ingenuity or own genuity thereof; is it one nor testimony or the lack by the warranted a defend- permit or disposition inclination of a merciful born law; prompted nor is it one penalty escape ant to with him. anyone connected him or by sympathy for added.) (Emphasis defendant, Supreme the trial of this after

Five months following Cage held United States Court the Fourteenth Process Clause of the Due instruction violated Amendment: element any as to fact or reasonable doubt you

If entertain a your duty it is guilt, the defendant’s necessary to constitute verdict and return a that doubt him the benefit of give prob- evidence demonstrates Even where the of not guilty. beyond a guilt such if it does not establish ability of guilt, doubt, doubt, This the accused. you acquit must reasonable one; however, that is founded that is one must be a reasonable caprice mere upon and not substantial basis tangible a real upon give rise doubt as would be such It must conjecture. by reasons of your mind raised uncertainty, grave to a thereof. or lack of the evidence unsatisfactory character It is an mere doubt. possible is not a A reasonable doubt man reasonable It is doubt that a doubt. actual substantial IN THE SUPREME COURT is not seriously required can entertain. What is an absolute a moral certainty, certainty. or mathematical but —, (emphasis placed by 498 U.S. at 112 L. Ed. 2d at 341-42 Court). in Supreme given Cage The Court reviewed the instruction as a whole and focused on the combination of terms used there in the instruction unconstitutional. The holding Court stated: convict,

The did at instruct that charge point guilt one to doubt; beyond must be found a reasonable but it then equated uncertainty” a “grave reasonable doubt with a and an “actual doubt,” substantial and stated that what was required was certainty” a “moral the It guilty. plain defendant was is us that the “grave,” they words “substantial” and are understood, commonly a of suggest higher degree doubt than the required acquittal under reasonable doubt standard. When these statements are then considered with the reference certainty,” to “moral rather evidentiary certainty, than juror becomes clear that a reasonable could have interpreted the instruction to allow a based on a finding guilt degree by below that proof required the Due Process Clause. —, Id. at 112 L. Ed. 2d at 342.

Relying Cage, the defendant contends that the instruction given by the trial court in the present contrary case was to the “beyond requirement proof a reasonable doubt” embodied in the In re Winship, Due Process Clause. 397 U.S. (1970). L. recently Ed. 2d We addressed this same issue in Hudson, case, 331 N.C. 415 S.E.2d 732 In that the defendant argued also the trial court’s instruction on Cage. reasonable doubt violated The trial court in its instruction in Hudson used the misgiving,” term “substantial but did not equate certainty.” reasonable doubt with a “moral Id. at at 742. Because the trial court in Hudson did not use the combina- and, thus, terms in Cage tion of condemned could not have misled jury, we concluded that the instruction there was not error. 142-43, However, bar, Id. at 742-43. in S.E.2d at the case at certainty” the use of the terms “substantial and “moral misgiving” in combination in the trial court’s reasonable doubt instruction requirements interpreted violated the of the Due Process Clause as Cage. Court in Supreme v. MONTGOMERY

STATE instructing in on reasonable in the case present The trial court nearly identical a of terms that doubt used combination court Cage. equated in trial combination condemned which, while not misgiving” with a “substantial reasonable doubt uncertainty” language “grave doubt” or identical to “substantial conveyed nearly meaning. identical More Cage, a condemned its joined case definition present trial court importantly, “honest, misgiving” doubt as an substantial reasonable convinced to a must be convict the requirement evidentiary certainty. The trial than to certainty,” “moral rather separate times certainty” “moral test two court stated the not identical to given While the instruction here was instruction. trial used Cage, the court instruction held unconstitutional disapproved combination terms so similar to the a combination of jury applied is a “reasonable likelihood” that Cage that there in a that violated the Due Process way instruction challenged ---, ---, n.4, McGuire, 502 U.S. See Estelle Clause. (1991) 385, describing the (disapproving language Ed. n.4 L. 2d 399 Evatt, v. 500 Cage forth in and Yates of review set the standard (1991), ---, of how reasonable 114 L. Ed. 432 terms 2d U.S. instructions, understood the trial court’s or would have jurors could Boyde standard of review set forth reasserting the Califor (1990) 380, 316, nia, 370, 329 (“[W]hether L. 2d 494 108 Ed. U.S. the chal applied has a reasonable likelihood that there is Constitution)). Our way” in a that violated lenged instruction Williams, cert. in State v. opinion (1983), denied, no Ed. different supports L. 2d U.S. conclusion, case. us that question as before rise gave trial court’s instruction determined that the Having States, we next United under the Constitution of the to error its of showing has met burden must whether the State determine doubt. N.C.G.S. beyond a reasonable error was harmless that 15A-1443(b) (1988). by tending the State presented evidence The was circumstantial. strong, while guilt, show the defendant’s to neither There was tended to show an alibi. The defendant’s evidence witness to the murder. Based nor a confession the defendant a evidence, show the State failed to we has conclude on this beyond in this was harmless constitutional error case Therefore, authority binding under a reasonable doubt. decision, hold that defendant is to Cage required this Court him. against charges to new trial on the is entitled a New trial. concurring

Justice FRYE in result. agree I with Justice Mitchell’s insofar as holds that opinion I the evidence was sufficient also agree verdicts. trial, that defendant must have a new I do so for although entirely juror different reason: the of a potential exclusion because I, national origin his violation of Article Section North Carolina Constitution.

While potential questioning jurors, prosecutor discovered venireperson Sesay, Benson junior a black school high science teacher, was from originally prosecutor Africa. The subsequently Sesay Mr. a juror excused as in defendant’s trial. Pursuant Batson v. Kentucky, 476 U.S. 90 L. Ed. 2d 69 defendant’s attorney requested that the prosecutor state for the record his grounds for Mr. excusing Sesay. prosecutor The stated:

Two grounds, Your Honor. First is the potential juror was teacher, and we a team will look to strike teachers unless canwe find a reason to We keep them. have one kept teacher. her, We found to keep Beasley, reason Ms. because she is victim, UNCC, age about same as the she went we feel that she will associate the victim. The fact that Sesay Mr. is a teacher for us him reason to strike unless can we find a reason to keep him. fact that he is not country from this where, is also another reason. I experiences have had countries, because of the upbringings other people way are influenced in they look at the in this country. law reasons, these For two the State exercises a challenge. attorney objected Sesay’s Defendant’s then Mr. excusal “under these circumstances.” The trial objection. court denied the

Defendant argues appeal that the excusal Mr. Sesay of the Equal violated Protection of the Clause Fourteenth Amend ment, Batson, I, see 476 U.S. 90 L. Ed. 2d and Article Section of the North Carolina Constitution. I agree defend ant Mr. Sesay’s that excusal our violated State Constitution.1 argues venireperson, 1. Defendant also that of excusal another Adabishi Amusan, violated the States and United North Carolina Constitutions for the same Amusan, Sesay. originally Nigeria, reason as the excusal of Mr. Mr. from prosecutor penalty excused because of his ambivalence the death toward IN THE COURT SUPREME I do grounds, this state constitutional I decide case on Because from Sesay’s Mr. excusal as to whether opinion not express the United States Constitution. service in this case also violated jury I, excluded person 26 states that shall be Article Section “[n]o color, sex, race, or national religion, on account of jury from service Cofield, 357 S.E.2d In State v. origin.” in the of a grand selection involving a case racial discrimination foreman, by Article purposes we in detail the served jury explained Court, I, Exum said: Writing 26. for the Chief Justice Section I, than individuals section 26 does more protect Article of have people treatment. The North Carolina unequal from will they corrupt not tolerate the provision declared this racism, forms of juries by their sexism and similar tion of judicial They recognized irrational have prejudice. evenhandedly system society operate democratic must of a subject those if is to command the of respect it perceived operate must also be jurisdiction. its It .... evenhandedly the outcome . . The effect racial discrimination on

. constitutional is immaterial. Our state proceedings of the are service jury racial discrimination guarantees against reliability of the than the protect intended to values other to these proceedings. protections, outcome of Central noted, already evenhandedness perception have is the we I, par- Article 26 in in the section justice. administration of system, protect integrity judicial is intended to of the ticular reliability particular conviction obtained in a just the not therefore, is not whether discrimination question, case. The affected the outcome process in the foreman selection rather, there is whether grand question jury proceedings; at all. in the selection of this officer racial discrimination omitted). (footnote 302-04, Similarly, Id. 625-26 at in this case not whether discrimination question is rather, trial; affected the outcome defendant’s process selection imposing being —possibly Nigeria, “came from and not familiar and because he country country trial.” Because in this his customs of laws and Constitution, Sesay violated our State I conclude that the excusal Mr. necessary Mr. Amusan. to consider the excusal of IN THE COURT SUPREME STATE v. MONTGOMERY is whether there was discrimination on question the basis of in origin national the excusal of a potential juror.

The prosecutor stated for the record that one of the reasons Sesay was Mr. excusing he was “the fact that he is not from country.” this He explained experience that it was his that “because countries, of their in upbringings other are in people influenced way they country.” look at the in this Certainly, potential law a juror can if be excused from service he or is she unable to understand and follow the law as explained the trial court. 9-15(a)(1986) See may N.C.G.S. (prospective jurors be asked ques- tions determine their “fitness and ... competency to serve .case, however, juror”). In this a there no was evidence that reason, Sesay, Mr. any because his African or heritage for other would be unable to understand and follow the law this state A country. review of the Sesay record indicates that Mr. born, not country asked which African he was how he long had lived in that African country, how had long he lived in the States, United or whether his “upbringing” country that other way would influence the he country. looked at law this contrary, To the in response to questioning from the prosecutor, Mr. Sesay said he could follow the law of North it Carolina as record, related to the penalty. death Based on the the prosecutor’s suggestion Sesay’s Mr. would upbringing influence his under- standing of North law completely Carolina without foundation. Sesay’s To allow Mr. removal on the facts of this case would mean any person country born another prevented could be from state, serving any jury in this regardless of his or her under- system. our standing of judicial

The fact that the prosecutor gave two reasons excusing Sesay, Mr. facially one of which was nondiscriminatory, does not above, I, change the result in this case. As noted Article Section protect is intended “to the integrity judicial system, reliability not just conviction obtained in particular Cofield, case.” 320 N.C. at 626. Accordingly, judicial imperative system be perceived “also evenhandedly.” operate Id. at at 625. S.E.2d To allow an ostensibly potential valid reason for excusing juror “cancel patently discriminatory out” a and unconstitutional would reason I, least, render empty very Article Section vessel. At the case, prosecutor’s facially nondiscriminatory reason does perception potential eliminate the that a juror was not allowed 577

STATE v. MONTGOMERY (1992)] N.C.

[331 serve country.” because he “is not from this As we said in Cofield, of a group racial from jury service ... entangles “[exclusion the courts in a web prejudice and Id. stigmatization.” at 625; (Mitchell, 357 S.E.2d at see also id. at 357 S.E.2d at 630 result) J., concurring (“[T]heintent of the people of North Carolina I, Article enacting Section guarantee absolutely [in unto 26] themselves system all cases their of justice would be free racism, reality both the and the appearance of sexism and other forms of discrimination these twilight years of the Twentieth Century.”).

Finally, the fact that defendant is American does not prevent him from objecting exclusion Mr. Sesay the basis Sesay’s Moore, of Mr. national origin. In State v. 329 N.C.

404 S.E.2d 845 we held that a black defendant had standing to object to the removal of a grand white jury foreman. “The issue,” said, we “is whether he was racially selected discriminatory manner. We conclude that defendant had standing (footnote 247-48, to raise this issue . . . .” Id. at 404 S.E.2d at 847 omitted); Ohio, (1991) ---, Powers v. 113 L. U.S. Ed. 2d 411 cf. Court, (Supreme Amendment, interpreting Fourteenth held that a white defendant had standing to object to the removal of a black venireperson). I,

Having found error under Article Section 26 of the North Constitution, Carolina unnecessary is to engage in harmless error Moore, analysis. at S.E.2d 848 (“[V]iolations at I, of article section involve reliability more than the result of the proceedings. The integrity judicial system is issue, analysis and a harmless error under these circumstances is inapposite.”). Defendant must therefore receive a new trial. reasons,

For these and not those stated in Justice Mitchell’s I opinion, vote to remand this for case a new trial. Chief Justice join Justice WHICHARD in this con- EXUM

curring opinion. Meyer

Justice dissenting. I dissent by from result reached the plurality regarding the instruction on reasonable doubt tendered the trial court in the instant case. It a fundamental tenet of procedural our law that a party object must to an allegedly improper jury instruc- THE SUPREME COURT IN MONTGOMERY

STATE v. review. objection appellate preserve is to party if the tion 10(b)(2) may “A party this in terms: explicit states Rule Appellate or omission jury charge any portion as error assign con- retires to thereto before objects unless he therefrom verdict, objects and to which he distinctly that stating sider its 10(b)(2).Here, . . .” N.C. R. P. App. . objection of his the grounds counsel that defense it is apparent main opinion, in the as noted instruc- the pattern the court that written to request made a record does Nowhere in the used. doubt be on reasonable tion this request. court denied the any indication appear there conference, However, occurred: colloquy the following charge at the doubt, Now, I will to .... reasonable THE COURT: vs. Williams from State of reasonable doubt give a definition cases, are two Williams There Reporter. in 308 North Carolina you’ll the bench. you approach to if I will to show it glad but be Bench) (Conference the at else, as the as far gentlemen, Anything The COURT: instructions? or requested conference precharge State, Your Honor. from Nothing Mr. WOLFE: No, sir. MR. HOWERTON: discussion, counsel related defense the above

As is from apparent to intention announced objection to the court’s that he had no instruction, instruc- pattern jury rather than the use Williams Therefore, in this should regard of error assignment defendant’s tion. waived, analysis prevail. should error” “plain and a be deemed the main reality, opinion this glaring to reconcile Attempting 10(b)(2) with Rule complied here that somehow defendant argues Smith, 311 opinions of our so on the basis and does Pakulski, 287, 290, 73, 316 S.E.2d clearly ap- Smith is here, whereas object, to Smith dealt with a failure posite because that defendant by an announcement we have affirmative waiver Pakulski Williams instruction. to the use of the objection had no Pakulski, argued In the defendants similarly inapposite. is on instruction failing give requested to the trial court erred instruction witness. During of a inconsistent statements prior conference, give pattern asked the court defense counsel The trial judge statements. prior inconsistent jury instruction STATE v. MONTGOMERY stated, that, then “If I overlook my call I attention. don’t Nevertheless, I think will.” Id. at 356 S.E.2d at 327. the court instruction; to provide requested failed no apparently, objection 574-75, was thereafter made Id. defendant. S.E.2d at 327. The presents instant case a far different background. factual Here, above, as noted after announcing its intent to provide the Williams reasonable doubt instruction the trial court expressly asked counsel they whether took issue with the Williams instruc- tion. This inquiry negative by answered defense counsel. circumstances, Under defendant’s failure to when object presented with an so opportunity do amounted to a waiver Therefore, potential assignment of error. defendant’s argu- ment should be addressed in “plain analysis. terms of error” deciding

In assignment whether an of error amounts to “plain error,” traditionally we have employed an exacting standard. plain always rule applied cautiously error ... to be

“[T]he and where, only exceptional case reviewing after record, entire it can be said the claimed error is fundamental error, basic, so something so so in prejudicial, lacking its done,’ that justice elements cannot been have or ‘where [the is grave error which to a amounts denial of a fundamen error] ‘ accused,’ right tal the of or the error has in a “resulted miscar ’ riage justice of or the denial appellant of a fair trial” fairness, or where the is as ‘seriously error such affect the integrity public or reputation judicial of or proceedings’ where fairly it can be said ‘the instructional probable mistake had a ” on the impact jury’s finding that the defendant was guilty.’ (1983) Odom, 660, 655, 375, v. State 307 N.C. 300 S.E.2d (quoting (4th 1982) (foot McCaskill, 995, United v. States F.2d Cir. omitted)). --- ---, ---, 339, Louisiana, 342 112 L. Ed. 2d v. U.S. Cage 122, Hudson, 331 415 S.E.2d in v. Only recently, holding in interpret we Court’s 732 had occasion Hudson, narrowly Cage we that was to be read Cage. In stated condemned a combination Cage that Court emphasized and doubt,” uncertainty,” terms: “actual substantial “grave of three 142, Therefore, at 742. certainty.” Id. at 415 S.E.2d “moral and in the Cage appeared condemned none of the terms because instruction, Id. court’s instruction. upheld we trial Hudson 142-43, 415 at 742-43. S.E.2d 581 Hudson, our

Notwithstanding position the main opinion to day finds unconstitutional the Williams reasonable doubt instruc tion, an instruction that contains only one of the phrases found (“moral Cage objectionable the Court in certainty”). Disavowing our express to give Cage a “narrow reading,” intent the main opinion relates: “While the given instruction here not identical to the instruction Cage, held unconstitutional the trial court used a combination of terms so similar to the combination disap Cage that proved there is a ‘reasonable likelihood’ jury applied the challenged way instruction in a that violated the Due Process Clause.” In reading Cage broadly, opinion main deviates from the clear dictate of our prior own case law as well as from virtually every that of other appellate court in the land --- McKellar, that has considered the matter. See Gaskins v. U.S. ---, (Stevens, J., 114 L. Ed. 2d 728 concurring denial of writ of certiorari Cage and acknowledging is to narrowly be read and emphasizing the critical import “grave uncertainty” --- denied, ---, reh’g (1991); language), U.S. 115 L. Ed. 2d 1098 (Ala. 1991) White, parte see also Ex 587 2d So. 1236 (finding per missible instruction failed to equate reasonable with doubt “grave uncertainty” and “actual substantial doubt” and that did denied, not require jury to find guilt to a “moral certainty”), cert. --- U.S. ---, --- denied, 142, ---, 117 L. Ed. 2d reh’g U.S. 117 State, (1992); (Ala. Smith v. L. Ed. 2d 665 588 So. 2d 561 Crim. 1991) App. (finding no error in use terms “actual and substantial State, Adams v. certainty”); doubt” and “moral 587 So. 2d 1265 (Ala. 1991) App. (finding Crim. permissible use of terms “actual State, Fells v. certainty”); and substantial doubt” “moral 587 (Ala. 1991) So. 2d 1061 App. (finding Crim. use of term “moral 334, v. certainty” be proper); People Jennings, 53 Cal. 3d --- 1009, denied, (same), ---, cert. P.2d Rptr. Cal. U.S. State, (1991); 833, 116 L. Ed. 2d 462 261 Ga. 412 S.E.2d Bradford (1992) (instruction permissible only when court used “moral State, Potts v. certainty”); reasonable 261 Ga. (1991) (instruction permissible when court not equate did reasonable doubt with “grave uncertainty” or “actual substantial denied, doubt”), Rhoades, cert. (1992); 120 L. Ed. 2d 908 (1991) (Johnson, J., 121 Idaho 822 P.2d concur (instruction doubt”), ring) permissible with petition “actual --- --- --- (No. filed, ---, cert. 91-8010, U.S. L. Ed. 2d filed Beldotti, 1992); 20 April Commonwealth v. 409 Mass. (1991) (instruction N.E.2d 1219 permissible “moral certain- THE COURT IN SUPREME 582 v.

STATE MONTGOMERY 559 N.C. (Mo. Barnard, App. 674 Ct. v. 820 S.W.2d ty” language); State used); 1991) (instruction Cage language where no permissible (1991) (instruction per- 660 474 N.W.2d Morley, v. 239 Neb. substantial “actual and uncertainty” and “moral missible when (1991) State, used); 813 P.2d Nev. Lee v. doubt” (instruction doubt” lan- and with “actual substantial permissible (1991) (same); State, P.2d 548 107 Nev. v. Lord guage); 1991) (instruction (Utah Gonzalez, App. P.2d 1214 condemned language none when contains proper Cage).

Furthermore, I main disagree specifically, more and involved a “combina- instruction here opinion’s assertion con- to the combination nearly identical terms that tion of First, improper. it therefore Cage" demned in improper here was because the instruction concludes that majority here, “nearly is identical” misgiving,” term used “substantial uncertainty” con- language “grave to the “substantial doubt” Second, the trial opinion, to the main Cage. according demned in as an reasonable doubt joined its definition of court improperly convict, that to requirement with a misgiving” “actual substantial certainty.” to a “moral convinced must be “honest, matter, misgiv- substantial the phrase, As a threshold itself, instruction. in a reasonable doubt improper is ing,” 142-43, Hudson, 415 S.E.2d at This we concluded much however, here, its skillful exhibits main opinion at 742-43. The phrase and concludes semantic sleight-of-hand hand at “honest, equivalent is of the “substantial misgiving” substantial This Cage. uncertainty” language condemned and “grave doubt” only specious. and can be considered contrary is to Hudson conclusion Thus, bottom, in a is that the use reasonable majority’s holding, certainty” due alone violates term “moral instruction doubt Cage is contrary to view that our plainly view is process. This challenged in the that there exists narrowly, and given read be Cage, highly is only condemned phrases one instruction jury applied likelihood” that the unlikely that there is “reasonable of the Due Process Clause. violative instruction in a manner Moreover, contrary to the well-settled holding opinion’s the main require does not of reasonable doubt definition that a principle 159, 167, Watson, See State exactitude. 440, THE IN SUPREME COURT

STATE v. McAVOY case, I opinions As read the in filed four votes do not exist to overrule or Williams to condemn its reasonable doubt instruction. Two members of the Court of a result violation, solely new Cage trial on the basis of a and three members solely on the of a basis violation. The majority vote Cofield this case thus only supports opinion the result reached the main its and not reasoning. Williams that language is condemned in the main opinion seems to have over preferred been the language and, by instructions pattern a number of our trial judges consequently, has been used frequently. way We have no of know- many ing how hundreds of cases in which the trial judge employed the Williams are in language appeal pipeline. Given the lack any value precedential of the main will opinion, it have effect no on cases. those sum,

In I believe that the opinion main errs its conclusion the reasonable by doubt instruction tendered the trial court was unconstitutional.

I join do not concurring-in-result opinion Frye, Justice as I perceive no error in this case. Cofield respectfully

I dissent. LAKE joins

Justice this dissenting opinion. STATE OF NORTH CAROLINA STEVEN JAMES McAVOY

No. 27A90 (Filed 1992) 25 June (NCI4th)— 1. Homicide —sufficiency first murder degree of evidence

The evidence was sufficient for submission to the prosecution in a for first murder degree premedita- based tion and deliberation it was stipulated where that defendant shot victim and the died victim as a result of the gunshot defendant, wound to his head inflicted and substantial that, evidence tended to show even the victim could though not reach the defendant behind a bar and held weapon no notes deciding Before that trial an error the court error,” amounts to the “plain reviewing court must be convinced error, that absent the jury probably would have a reached Walker, 33, 39, different v. verdict. State 316 N.C. 340 S.E.2d words, “In other the appellate court must determine in question that error ‘tilted the scales’ and caused the Black, to convict the defendant.” Id. (citing 308 N.C. (1983)). judice, In the case sub a review of the whole record reveals that the reasonable doubt instruction did not amount to As plain error. noted the main opinion, there “substantial evidence to findings the defendant THE COURT IN SUPREME he and that and deliberation with premeditation killed the victim felonies.” of the underlying of one during her the course killed glasses, victim’s on the fingerprint The existence defendant’s murder, shortly lot before in the parking presence defendant’s hairs consistent pubic apartment in the victim’s presence defendant, weapon of the murder and the location with that of in- any error in court’s residence made near the defendant’s overwhelming In this the face of pale significance. struction evidence, exhaustively in the main set out so characterized a the instruction had is unable to show defendant opinion, verdict. jury’s impact” “probable Moreover, did not waive defendant arguendo that assuming find that we Cage does dictate objection regard, his Cage, Supreme case. In Court error in instant reversible trial reasonable doubt instruc- Louisiana court’s found error tion, stating: convict, guilt instruct charge point did at one doubt; it then beyond equated a reasonable but must be found uncertainty” and an “actual “grave with a a reasonable doubt doubt,” required and stated that what was substantial It is certainty” guilty. plain that the defendant was a “moral they are “grave,” to us that the words “substantial” understood, than degree a of doubt commonly suggest higher doubt standard. under the reasonable required acquittal reference then considered with the When those statements are certainty, certainty,” evidentiary than to “moral rather interpreted juror could have becomes clear that reasonable guilt degree based on finding instruction to allow a by the Due Process Clause. required below that proof

Case Details

Case Name: State v. Montgomery

Court Name: Supreme Court of North Carolina

Date Published: Jun 25, 1992

Citation: 417 S.E.2d 742

Docket Number: 265A90

Court Abbreviation: N.C.