*1 STATE (1997)] N.C. 254 [345 STATE OF NORTH v. SAMMY CAROLINA CRYSTAL PERKINS
No. 60A94 (Filed 1997) 10 February Jury (NCI4th)— capital §§ 1. selection— trial — penalty death views — excusal for cause — rehabilitation
not allowed excusing prospective juror
The trial court did not err in for juror’s death-qualifica- cause based on the answers to the court’s questions juror tion where the told the court he could follow explained respect the law as him the court with to the sen- tencing procedure, he but also stated that did he not know penalty” whether he “could vote on the death and that he was respond” question asking “unable whether would be able or proved unable recommend a death sentence if the State beyond its a reasonable doubt. did Nor the trial court err in .case refusing attempt juror to allow defendant to to rehabilitate this juror position issue, since did not know his on the and it can- likely not be concluded dispos- that he would have answered the questions differently itive if the court had allowed defendant to questions. ask him additional 2d, Jury §
Am Jur 279. regarding capital punishment Comment note on beliefs disqualifying juror capital as post-Witherspoon in case — cases. 39 ALR3d 550. Jury (NCI4th)— capital 2. § 226 selection — death trial — penalty views — excusal for cause excusing
The trial not capital court did err in cause prospective jurors unequivocal trial three who were about their inability to penalty vote for the death allowing without attempt jurors to by to rehabilitate the questioning since additional likely procured
defendant would responses. have different 2d, Jury Am Jur 279. regarding capital punishment
Comment note on beliefs disqualifying juror post-Witherspoon case — cases. 39 ALR3d THE SUPREME COURT IN STATE v. PERKINS *2 penalty capital views— Jury (NCI4th)— 232 trial — death §
3. larger percentage blacks excluded— of excusal cause — protection equal or cross-section violation fair no jury protection a rights equal and to selected Defendant’s by community were not violated a fair cross-section of the from only percent white were excused fact that five of veniremen the thirty-five opposition penalty percent the while for their death were defendant did not of black veniremen so excused where any prospective juror was on the basis of his prove that excluded disproportionate impact Merely showing race. on the or her composition jury the not to establish a vio- racial is sufficient rights. or state constitutional lation federal 684; Jury 2d, Am Jur Law 244. § § Criminal jury per- peremptory challenge from Use of exclude belonging 14. sons to a class or race. AL43d challenges peremptory to exclude ethnic Use Americans, from groups, other than black criminal racial 398. post -Batson state cases. 20 ALR5th — capital juror Jury (NCI4th)— § 4. selection — trial — likely” “more than to vote for death —rehabilitation— challenge denial of for cause by failing did to excuse for cause
The trial court not err prospective juror during who individual voir dire about asserted likely” publicity he “more than vote for death pretrial that would where, the later in the voir dire after if defendant were convicted fully juror jury’s explained, duties been stated had more automatically penalty regardless would not vote for death he mur- of the evidence if defendant were convicted told that would follow the law der, juror and the also the court explain to the as the would it as sentence of North Carolina court jury. to be made recommendation 2d, 685. Am Jur Criminal Law punishment regarding capital note on beliefs
Comment post -Witherspoon disqualifying juror case — 550. cases. ALR3d
STATE Jury (NCX4th)— jury § 201 selection — all elements not proven hesitancy guilty ability return — verdict — challenge follow law —denial of for cause
The trial court did not err its denial of defendant’s chal- lenge juror for cause of a might who stated that he be hesitant returning about guilty verdict of not proved if the State three of the four elements of heavily a crime and the outweighed three where, one during colloquy finding about guilty defendant not if all the elements of the proven, juror crime were not stated unequivocally that he would explained follow the law as to him court, juror subsequently unequivocally stated even if he thought might guilty be but was not satisfied *3 beyond doubt, a reasonable he would not hesitate to find defend- guilty. ant not prospective juror’s answers did not demon- strate that he properly apply would be unable to the law on the presumption of innocence or that he would not be a fair and impartial juror. 2d, Jury
Am 226, Jur §§ 291. Jury 6. (NCI4th)— jury § 203 knowledge selection — another girl strong murdered feelings ability to be — — impartial challenge for cause —denial prosecution
The trial court in a for the first-degree murder rape seven-year-old and of a girl did not err the denial of defendant’s challenge for prospective juror cause of a who stated during voir dire that he had young girl known a who was mur- dered and that he had strong feelings about it which he would likely take into the juror room where the thereafter told the court that his strong feelings prevent would not him from being impartial juror. a fair and Jury
Am 2d, Jur 226, §§ 291. juror Fact criminal case, juror’s or relative friend, previously has been victim of criminal incident ground disqualification. 65 ALR4th 743. 7. Law (NCI4th Criminal Rev.)— pretrial § publicity— change
denial of venue The trial prosecution court in a for first-degree murder rape seven-year-old of a girl did not err in denying defend- ant’s motion for a change of venue on ground pretrial pub-
STATE licity prospective jurors where ten they who indicated that had opinion pretrial publicity formed an excused; based on were sev- jurors eral of the case; selected to serve had not heard of the jurors those who through television, had learned of the case newspapers, they or word of mouth stated that an had formed opinion they about the case and that could set aside such information. N.C.G.S. 15A-957. §
Am 2d, Jur Criminal Law 841; §§ 204; Homicide Venue § publicity ground change
Pretrial in criminal case as for of venue. 33 ALR3d 17. (NCI4th Rev.)—
8. Criminal Law alleged juror § 532 miscon- baby-sitter duct —conversation with denied —mistrial The trial court in a murder case did not err or, denial of defendant’s motion alternative, for a mistrial in the juror for the removal of a reported misconduct when it was during juror baby-sitter the court the trial that the had told her had guilty and, except decided that defendant was holdout, for one put believed that defendant should be to death where the court hearing presence conducted a out of the jury; regarding purported the evidence was unclear when the place what, anything, conversation took case; if was said about the *4 juror baby-sitter’s the testified that she had not been to the day home allegedly place; upon the the conversation took exten- by court, jurors sive examination the all having denied formed or expressed any opinion guilt as to defendant’s or the sentence to imposed be if he guilty; were found and the trial court found that it could not determine the content of the conversation between juror baby-sitter, jurors having the and her that all denied formed opinion an guilt pun- as to the or innocence of defendant or the imposed, juror ishment to be and that no misconduct had happened by occurred. Even if the incident as described baby-sitter, jury. no outside influence was exerted on the 2d,
Am Jur Criminal Law 914. § jurors Contacts between alternate and other or out- siders as reversible error. 84 ALR2d 1288. THE SUPREME COURT IN videotaped (NCI4th)— § Evidence and Witnesses
9. admissibility impeachment not interview — — exclusion prejudicial error psychologist’s videotaped interview of Assuming that a child seven-year-old rape brother, victim’s who murder and was a died, present properly when authenti- the room his sister was juvenile impeach investigator’s and a testi- cated admissible bitten mony that had her that defendant had the brother told “nasty” dead,” tape, and “made and finger, watched a [the victim] pillow, prejudiced he a was that mentioned defendant videotape videotape trial court’s exclusion where difficulty that, although the brother did have some shows answering questions, and did state expressing himself that “pillow died,” “her put defendant a head” and [the victim’s] the investigator’s which comments were consistent with testi- mony; pillow placing face; admitted on the victim’s defendant physical suggested the victim had been smothered evidence raped; that and the victim’s cousin testified he saw defendant on pillow top victim, face, was on the and that victim’s that possibility having her; defendant was sex with and no reasonable been for the trial exists that the result would have different but videotape. court’s failure to admit Appellate 759; 2d, Am Jur Review Constitutional Law § Criminal 848; 196; § § Law Homicide 560. § (NCI4th)— Evidence Witnesses statements and victim’s brother — admissible as excited utterances rape seven-year-old prosecution
In a for the murder and of a three-year-old girl, made brother statements the victim’s to a juvenile investigator that defendant had bitten him while he was victim, on the defendant him watch bed with that made “mommy “nasty up tape,” dead,” woke was [the victim] properly “made her dead” were admitted exception hearsay under the utterance to the rule excited where made after the statements were ten hours the murder one body discovered; had hour after the brother been *5 experience through startling witnessing death; of the victim’s the spontaneous and his were and not fabricated or the statements result of second-hand information. 2d, 861, 865, 879,
Am Evidence §§ Jur 882. IN THE SUPREME COURT jury credibility to Instructions of child’s testi- mony in criminal case. 32 ALR4th 1196. (NCI4th
11. Criminal Law 460 Rev.)— closing § trial — argument of both theories of —consideration greater sentencing options impropriety cured murder — — by instructions Any impropriety in prosecutor’s closing the argument that the guilty should find defendant under both theories of first- degree gives murder judge option because “that the a greater with punishment” regard any judge’s error in failure intervene were cured the trial court’s correct instruction to the jury on legal apply standard it was to in determining guilt and carry on the effect of State’s failure to proving its burden of beyond guilt appear reasonable doubt. It not does guilty prosecutor’s rendered a verdict based on the argument potential greater punishment about for than rather on the overwhelming evidence of guilt. defendant’s
Am Jur THal 2d, 587, 711. §§ 12. Evidence (NCI4th)— psy- § and Witnesses defense chologist proper allega- to show — cross-examination bias — prejudicial
tion misconduct — cross-examination not error
The State’s psychologist cross-examination of a forensic who testified for defendant as fired, removed, to whether he had been or transferred from the Hospital forensic unit at Dorothea Dix may misconduct was relevant to show that the witness have been against Assuming arguendo biased the State. that the trial court by permitting prosecutor inquire erred allegation an into improper witness had made patient, advances to a this prejudicial light error witness’s denial of misconduct overwhelming evidence guilt charged. the crimes 2d, Expert Opinion Am Jur 495; § Evidence Evidence *6 IN SUPREME COURT THE
STATE (1997)] N.C. 254 [345 Rev.); and (NCI4th Evidence Law § 13. Criminal capital sentencing (NCI4th)— § Witnesses — character of witness — accu- evidence — rebuttal—cross-examination against sation defendant capital in placed his character in issue sentenc- letters defend- proceeding a defense witness read from
ing when was a in which defendant stated that he ant written to her had thought daily,” Lord “pretty person,” that “about the good he Therefore, the give his life to the Lord. that he knew should good of character to rebut this evidence State was entitled asking had on cross-examination whether she the witness in 1978. raping daughter defendant of her accused 2d, 431. § Am Jur Evidence Prejudicial prosecutor’s of comment on charac- effect presented reputation accused, where accused has ter character witnesses. 70 ALR2d 559. capital sentencing— (NCI4th Rev.)— § Criminal Law 1342
14. prior actually served— evidence conviction — time prejudice absence of prosecutor on elicited cross-examination
Evidence capital sentencing proceeding defendant had defendant in that years attempted in prison fifteen for first- been sentenced to rape was degree aggravating admissible to establish the circum- felony previously had been convicted of a stance that defendant person. Assuming to the involving the use or threat of violence arguendo length of time served defendant evidence pursuant not in a to this conviction was relevant sentenc- prejudiced by ing proceeding, was not the admission received the fif- of such evidence where evidence that defendant teen-year in 1981 and the victim in this case sentence killed obviously 1992 demonstrated that defendant did serve sentence, presented State substantial evidence estab- entire aggravating lishing guilt supporting each of the possibility circumstances, and no reasonable exists a differ- trial if had ent result would have been reached at court this evidence. excluded 445; 2d, 598; Evidence § §§
Am Jur Criminal Law Rape
STATE v. PEEKINS cautionary instructions, Necessity sufficiency rape, evidence of other similar prosecution as to *7 77 ALR2d 906. offense. by prose-
Supreme to what comments Court’s views as privilege cuting attorney violation of accused’s constitute against under Federal Constitution’s self-incrimination L. Ed. 2d 926. Fifth Amendment. sentencing— Rev.)— capital (NCI4th §
15. Criminal Law 1348 parole not length issue prior of time served — conviction — raised in a prosecutor’s of defendant
The cross-examination for a proceeding length of time he served sentencing about of defend- attempted rape not raise the issue prior conviction did parole in the event the recommended eligibility ant’s entitle defendant to an instruction life sentence and did not parole eligibility. 247; Trial 918; § Law New Trial 2d, §
Am Jur Criminal 575. § of court
Prejudicial effect of statement or instruction pardon. possibility parole 12 ALR3d 832. or as to sentencing— Rev.)— capital (NCI4th Law 453 § 16. Criminal place victim — no due closing argument jurors — process violation capital sentencing in a prosecutor’s closing argument position of jurors put themselves in the proceeding asking the improper, but this seven-year-old rape murder victim was argu- deny process where the not defendant due argument did evidence; argument manipulate misstate the did not ment accused, such as implicate specific rights of the not did silent; the State’s evi- right to remain right to counsel or raped and smothered overwhelming that defendant dence cir- supported aggravating each of the strongly the victim and unlikely jury’s jury; and it is found cumstances argument. this was influenced decision 463, 560; Trial 706. 2d, §§ Homicide Am Jur prosecutor’s prejudicial Propriety effect family circumstances, or the age, victim’s remarks as to 8. like. 50 ALR3d
Supreme Court’s views as to what courtroom state- by prosecuting attorney during ments made criminal process violate due or constitute denial of fair trial. 40 L. Ed. 2d 886. (NCI4th Rev.)— capital
17. Criminal Law sentencing— § 468 closing argument supported evidence — no due process violation support
Even if the prosecutor’s evidence did not closing argument capital sentencing proceeding in a that defendant killed prevent him, the victim to her from testifying against argu- this process. ment did not violate right to due Appellate 2d, Am Jur Review §§ *8 Propriety prejudicial prosecuting and effect of attor- ney’s arguing points closing new matter or in his summa- tion in criminal trial. 26 ALR3d 1409.
Whether
admission
of evidence
at criminal
trial
in vio-
lation of Federal
prejudicial
Constitutional
rule is
error or
Supreme
error,
harmless
Court cases.
18. Criminal Law Rev.)— capital sentencing— § 439 closing argument about defendant —remarks
The trial court did not err overruling objec- prosecutor tions to remarks of the in closing argument in a capital sentencing proceeding that “to describe as a [defendant] man is an affront to all” us and that the pre- rules of the court prosecutor vented saying really from is,” “what he since the prosecutor did not call defendant an “animal” or refer himto disparaging name, another and these remarks were isolated. 2d, Am 463; Jur Homicide § § Trial 554. (NCI4th Rev.)—
19. Criminal Law capital sentencing— § 458 closing argument mentally mean rather than —defendant gross impropriety disturbed —no prosecutor’s closing argument in a sentencing proceeding to the supported effect that the evidence the conclu-
STATE n “just plain sion that defendant was mean” rather then under the influence of a mental or emotional disturbance fell within the generally during closing argument wide latitude afforded counsel improper require grossly was not so as to ex mero motu intervention the trial court. 2d, 463;
Am Jur Homicide Trial 554. § (NCI4th Rev.)— capital sentencing— Criminal Law § same evidence for more than one circumstance — failure give limiting plain instruction —no error capital first-degree
In a sentencing proceeding murder wherein the trial court the aggravating submitted circumstances engaged that the murder was while defendant was committed rape the commission of a and that the murder was especially heinous, atrocious, cruel, error the trial give limiting informing court’s failure to instruction it rape not to consider the when determining the existence of the especially heinous, atrocious, aggravating or cruel circumstance plain did not rise to the level of error where the evidence at trial raped seven-year-old established that defendant victim while pillow; he smothered her with a the medical examiner testified twenty it that would have taken ten to minutes for the victim to die and that the victim would have been conscious for three to period; raped during seven minutes this and defendant three-year-old grandmother smothered the victim while her brother were in the same bedroom and while the brother watched. *9 2d, 598, 599; 554;
Am Law §§ § Jur Criminal Homicide Trial 1760. §
Sufficiency purposes evidence, penalty, of for of death statutory aggravating to establish circumstance that mur- heinous, cruel, depraved, post-Gregg der was or the like — cases. 63 ALR4th 478. sentencing— (NCI4th Rev.)—
21. Law § Criminal right no of allocution constitutional, statutory, or com-
A defendant does not have right mon law to make unsworn statements of fact to the capital sentencing proceeding. of a the conclusion 2d, 531; Law 550. § § Am Jur Criminal Homicide COURT IN THE SUPREME
STATE sufficiency question to defendant Necessity of and say why should not anything sentence he has to whether against ALR2d 1292. pronounced him. 96 be respect question with Resentencing of error because why anything say sen- whether he has to defendant as to against him. 96 ALR2d pronounced not be tence should 1337. (NCI4th Rev.)— death sentence §
22. Criminal Law disproportionate upon imposed defendant for
A sentence of death disproportionate where defendant not excessive or murder was felony premeditation and of murder guilty was found on theories seven-year-old dating deliberation; defendant had been killing; at the time of the for two months grandmother victim’s three-year-old grand- lived with their and her brother the victim bedroom, and knew defend- mother, slept grandmother’s in their rape; of a ant; during occurred the commission the murder especially heinous, atrocious, aggra- or cruel found vating circumstance. 2d, 628; § Law Homicide
Am Jur Criminal purposes penalty, Sufficiency evidence, of death statutory aggravating that mur- circumstance to establish post-Gregg heinous, cruel, depraved, or the der was like — cases. 63 ALR4th 478.
Sufficiency evidence, penalty purposes, for death statutory aggravating circumstance that murder establish committing, attempting, was committed in course fleeing post-Gregg cases. offense, other and the from like — 67 ALR4th 887. constitutionality death
Supreme views on Court’s imposed. penalty procedures under which it is L. Ed. 2d 886. dissenting.
Justice Webb Frye joins in this dissent. Justice judg- pursuant 7A-27(a) N.C.G.S. from a *10 Appeal right as of by Sumner, J., at the death entered imposing a sentence of ment Court, County, Superior Pitt Criminal Session of 15 November 1993 SUPREME COURT IN THE (1997)1 was also first-degree murder. Defendant upon guilty a verdict of rape to a consecutive first-degree and was sentenced guilty found bypass the Court of imprisonment. Defendant’s motion of life term rape 23 November conviction was allowed Appeals as to Supreme Court June 1995. Heard in the General, by Hensey, M. Easley, Attorney Charles F. Michael Special Attorney General, the State. Deputy for Appellate Defender, by Janine M. Ray Hunter, Jr., Malcolm Defender, defendant-appellant. Crawley, Appellate Assistant for PARKER,Justice. Sammy capitally on Crystal Perkins was tried indict-
Defendant rape. first-degree first-degree murder and charging ments him with capital charged. Following sen- jury guilty as found defendant death; a sentence of and tencing proceeding, the recommended also judgment accordingly. The court the trial court entered imprisonment imposed a consecutive sentence of life herein, we conclude that the rape. For the reasons discussed phase, sentencing proceeding selection, guilt-innocence prejudicial free from error and that defendant’s trial were disproportionate. is not death sentence tending during the presented to show that
The State evidence sexually April 1992, assaulted early on 19 defendant morning hours her seven-year-old LaSheena Renae “JoJo” Moore smothered death. -living with his mother in April 1992 defendant was
On 18 beers, family drinking visiting with his several After Greenville. Moore, a he had of Theia Esther woman went the home years. for ten or eleven dating months and had known been for two grandchil- with her two children and four lived in the house Moore a room with two of dren, of whom was victim. Moore shared one three-year-old “Champ” Moore and the Michael grandchildren, her daybed. slept victim, together who on a time, defendant leaving Moore house for a short
After approx- At crack cocaine. drank more beer and smoked returned and bedroom, April, Moore’s imately defendant entered 3:00 a.m. on present. were grandchildren two where she and her Moore, sex with pornographic then tried to have video and watched large discovered a was in the room. Moore surprised who was that he *11 THE SUPREME IN COURT STATE (1997)] N.C. 254 [345 pillow, explained her butcher knife under and defendant that he had it open used to a can of beer.
Moore ordered defendant out of the house. she to As walked him door, Champ rose from his bed and claimed that defendant had finger. left, bitten After defendant he called Moore twice to insist Champ. that he had not sleep; bitten Moore then went to when she a.m., Champ’s awoke at around finger 9:00 she observed that was approximately a.m., family swollen. At 11:30 while prepar- was ing go services, to church for Easter Moore discovered that JoJo was dead. early
The evidence tended to show that morning, sometime that pillow defendant victim, had mounted the held a face, over her and had her. sex with The medical examiner determined that the victim died suffocation and estimated that the victim’s mouth and nose period were for covered a of between three seven minutes before she became unconscious. night morning
Defendant testified that on the and question, in he drinking smoking had been and crack cocaine. He stated that JoJo awoke he having put pillow while was sex with He a Moore. over her face so that she see would not them. He said that he administered CPR, thought resuscitating was successful in He which her. then beer, went to for open the kitchen a a knife can, used and placed the knife bed. morning, Moore’s Sometime in he took Champ Champ to the bathroom. stuck his finger in defendant’s mouth, and defendant bit it. He said Moore him threw out of the after discovering house the knife biting and the incident. Defendant, was trial, who in wheelchair the time of explained that he suffers from a debilitative muscular disease called myasthenia disability gravis. precluded His having him from sexual any position intercourse where support he would have to himself with his On arms. cross-examination defendant admitted that he had prior attempted conviction rape in 1981 was released from prison prior possession 1986. He also had convictions for with intent sell and deliver heroin and cocaine in 1988and 1989. jury found guilty first-degree rape defendant guilty premeditation murder under the theories of and deliber- felony ation and murder. The found all aggra- three submitted vating (i) previously circumstances: that defendant had been con- felony involving victed violence; use or threat of use of THE SUPREME COURT
IN
STATE v. PERKINS murder was committed defendant while (ii) attempt commit first- engaged in the commission of or an especially heinous, rape; (iii) the murder was degree statutory and five non- atrocious, or cruel. The also found one *12 statutory mitigating the mitigating The found that circumstances. outweigh aggravating did not the circumstances circumstances sufficiently were substantial to aggravating circumstances imposition penalty. The recommended call for of the death penalty. the death necessary presented spe- address facts will be to
Additional cific issues.
JURYSELECTION
In
first
assignment
of
error,
defendant contends that
the trial
juror
erroneously
prospective
based on the
excused
cause
court
death-qualification questions. He
juror’s
argues
to
answers
the court’s
juror
principles set out in
excusing the
for cause violated the
He
Illinois,
(1968).
During presumption principles juror WilliamE. the basic tive Jackson proof outlined the sen- and the burden of of innocence stated, the law as that he understood tencing procedure. Jackson following colloquy The then occurred: presented the court. Jackson, to very carefully, Mr. listen The Court: Please carefully your responses before questions. following Consider juror case, in this you respond. If are to serve as selected you you explained you it be will law as will can and follow the guilty guilty is deciding whether the defendant Court offense? first-degree or of other lesser of murder Yes, sir. Juror: beyond you are a reasonable doubt If satisfied The Court: murder, can and necessary things constitute
those first-degree murder guilty you will vote to return verdict possible penalties? you though is one of even know that death Yes, Juror: sir.
STATE PEKKINS N.C.254 your Considering personal The . . Court: beliefs . about the please you penalty, death state for me whether would be able or penalty unable to for a vote recommendation of death even you beyond though are satisfied a reasonable doubt of the three things required law concerning aggravating mitigating previously circumstances mentioned.
Juror: I know don’t whether I could vote on the death penalty. response Court: Is that an or an response, able unable
sir? respond
Juror: Unable to to that.
The Court: Unable. Thank you. Mr. Jackson, excuse me. If the defendant is con- Staten — first-degree murder, you victed can and will follow the law of *13 North as to Carolina the sentence recommendation be to made explain Court the the will it? Yes, sir.
Juror: challenged The State Jackson cause. Defendant then re- quested questions that he be allowed a few Jackson, to ask and the request. court juror denied his The court excused for cause on grounds a regardless as matter of conscience of the facts and circum- stances ... he would be unable to a respect render verdict with . charge juror’s to the . . and . . . that the concerning views penalty prevent substantially death would or impair perform- juror ance his duties as a in accordance with Court’s juror’s instructions and the oath. improperly first contends that Jackson was excused responses questions
because his to the support asked did not the con- unqualified clusions court and did not render him to serve. potential for determining juror may standard when be capital excluded for cause of his punishment because views is juror’s ‘prevent substantially “whether the impair views would or performance juror his duties as a accordance with his ” instructions and his oath.’ Wainwright Witt, 412, v. U.S. 469 424, 841, 83 L. Ed. (1985) (quoting Texas, 2d 851-52 Adams v. 448 38, 45, 581, U.S. 65 L. Ed. 2d 589 (1980)); accord v. Davis, State 269 COURT THE SUPREME
IN
254
N.C.
418,
denied, 496
621-22,
(1989),
425
cert.
607,
386 S.E.2d
N.C.
325
jurors
Prospective
with reser
268
905,
(1990).
L. Ed. 2d
110
U.S.
clearly
to “state
punishment must be able
vations about
their own beliefs in
they
temporarily set aside
willing
are
McCree,
162,
476 U.S.
v.
the rule of law.” Lockhart
deference to
39,
137,
Brogden, 334 N.C.
149
State v.
176,
(1986);
L. Ed. 2d
90
juror’s
prospective
905,
However,
43,
(1993).
S.E.2d
907-08
430
proven
be
with
inability
law does not have to
to follow the
bias
Locklear,
[239,] 248, 415
clarity.
State v.
unmistakable
624,
Davis,
at
386
[726,]
[(1992)];
731-32
State
S.E.2d
judge
where the trial
is
will be situations
at 426.
S.E.2d
“[T]here
juror
impression
prospective
would
that a
with the definite
left
. . .
impartially apply the law.
faithfully and
unable to
[T]his
be
judge
who sees and
why
paid to the
is
deference must be
Witt,
at
L. Ed. 2d
juror.” Wainwright v.
469 U.S.
hears the
852-53.
511-12,
824, 839-40,cert.
Conaway, 339 N.C.
State v.
denied, - U.S. -,
Jackson told the
sentencing procedure.
respect
to the
court with
to him
he “could vote
not know whether
However, he
stated that he did
also
ques-
respond” to a
penalty”
and that he
on the death
“[u]nable
recommend a
be able or unable to
asking whether he would
tion
beyond its case
reasonable
proved
if
sentence
the State
death
Illinois,
L. Ed. 2d 492
Morgan v.
U.S.
doubt. Under
questions are not sufficient
“detect
law”
(1992), general “followthe
substantially impairing their
jurors
preventing or
with views
those
*14
734-35,
at
instructions and oath.” Id.
with their
duties
accordance
of voice and
Jackson’s tone
judge
2d at 506. The
heard
119 L. Ed.
dispositive
respond
inability to
to a
his demeanor. Jackson’s
observed
Jackson’s
to conclude that
permit
the court
question was sufficient
penalty
prevent or substan-
would
respect to the death
views with
juror. Accordingly,
tially impair
performance of
duties
excusing him for cause.
not err in
trial court did
reversible
court committed
that the trial
also contends
“Both the
question Jackson further.
permitting him to
error
prospective jurors
question
right to
and the State have the
43,
Brogden,
N.C. at
334
capital punishment.”
on
their views
about
is
inquiry on voir dire
extent of
at
“The manner and
430 S.E.2d
908.
372, 390,
Taylor, 332
discretion.” State v.
within the trial court’s
270
THE
IN
SUPREME COURT
PEKKINS
414,
challenge
support-
S.E.2d
When the
for cause is
juror’s
prospective
questions
ed
propounded
answers to
dire,
questioning
voir
the defendant must show that further
“would
likely
produced
have
different answers” to establish that the trial
court abused its discretion
refusing to allow the defendant to reha-
juror.
challenged
Oliver,
28,
bilitate the
40,
State v.
183,
(1981);
Brogden,
44,
S.E.2d
accord
After considering prospective juror Jackson’s voir dire in its entirety, very we conclude that there is suggest little to that he was qualified response other than his that he would follow North Carolina *15 respect procedure. law with to sentencing Jackson stated
IN
SUPREME COURT
THE
STATE N.C.
on the
he “could vote
not know whether
unequivocally that
did
question
respond”
penalty”
that he was
death
“[u]nable
State
penalty
death
if the
he could recommend the
asking whether
position
issue,
not
on the
proved
Jackson did
know
its case. Since
disposi-
likely have answered the
that he would
we cannot conclude
differently
allowed defendant
ask
questions
if the court had
tive
trial
questions. Accordingly, we conclude that the
him additional
by declining
request to
its
not abuse
discretion
court did
question
overruled.
assignment
This
of error is
Jackson further.
[2]
Defendant
next
assigns
error to
removal
of three additional
jurors
ground
excusal violated the
prospective
on the
that their
jurors unambiguously
Witherspoon
prospective
stated
rule. These
State
they
of death even if the
that
would not recommend sentence
beyond
Accordingly, the trial
doubt.
proved its case
reasonable
Ward,
by excusing
See State v.
did not err
them cause.
court
denied, - U.S.
(1994),
721-22
cert.
64, 87-88,
-,
Defendant also contends jurors. response prospective In allow defendant rehabilitate prospective jurors at court, the questions propounded the trial inability to for the death unequivocal vote were about their issue penalty. likely not have by defendant would questioning Additional we hold that the trial produced responses. Accordingly, different by refusing to allow defendant to court did abuse its discretion jurors question these further. See id. Under this court violated various federal assignment of error, state constitutional also argues provisions jurors death-qualified. prospective who could not be excluding the jurors prospective denied of these
He excusal contends a fair right to a selected from cross-section defendant the to the United States community, violation of the Sixth Amendment I, and 24 the North Article Sections Constitution and that the excusal these He also contends Carolina Constitution. of the Fourteenth jurors Equal Protection Clause violated the I, and Article Sections United States Constitution Amendment to the *16 272 THE IN SUPREME COURT v.
STATE PERKINS [345 [254] (1997)] juror prospective Equal The excusal of a does not violate the solely impact compo Protection Clause because of its on the racial jury. York, 352, 359-60, sition of the v. New 500 See Hernandez U.S. “ racially 395, (1991). discriminatory 114 L. Ed. 2d ‘Proof 406 in purpose required Equal tent or to show a violation the is ” 360, Id. L. at (quoting Village Protection Clause.’ 114 Ed. 2d 406 Arlington Heights Metropolitan v. Corp., 252, Hous. Dev. 429 U.S. of 265, Ed. 464 (1977)). 50 L. 2d The Sixth Amendment does not guarantee jury composed right “defendant the to of members of a gender.” Norwood, 511, 527, certain race or State v. denied, - U.S. -, - (1996), 2d -, S.E.2d cert. L. Ed. present 65 U.S.L.W.3665 In properly case the trial court prospective jurors excluded at issue. The record discloses that prosecutor jurors asked court to excuse these on the basis of inability proved their to if recommend a death verdict the State its proved juror case. prospective Defendant has not Merely dispropor excluded the basis of his or her race. showing impact composition jury tionate racial on the is not sufficient to establish a violation of defendant’s federal or state constitutional rights. assignment This of error is overruled. assigns
Defendant next error the court’s failure to excuse for jurors, Ayers, cause two Michael Parker and Charles who defendant inability contends indicated an to render a fair decision. As to Parker, defendant first argues that Parker should have been pursuant Morgan
removed for cause Illinois, 504 U.S. L. being questioned Ed. 2d While Parker was during individual pretrial publicity, voir about attorney dire asked him if any opinion he concerning punishment had formed defendant should receive if were he convicted. Parker stated that he had formed opinion that, such an convicted, if defendant were he would likely” “more than vote for death. The court reminded counsel that pretrial individual voir dire was publicity limited did questions allow regarding penalty further the death at that time. during dire, Later voir Parker told the court that he would in making follow the law his decision and that he would not automatically penalty regardless vote for death of the evidence in mitigation. The ques- court offered to allow ask further tions. Defendant declined to peremptory do so and exercised a chal- lenge to remove Parker. argues that Parker’s assertion that he would “more likely”
than penalty required recommend the death the trial court to
STATE v. PERKINS N.C.254 pursuant exclude him for Morgan. disagree. cause We Later in the dire, jury’s fully voir after the explained, duties had been more Parker said that if defendant first-degree murder, were convicted of automatically penalty would not vote for regardless the death the evidence. Parker also told the court that he would follow the law of North explain Carolina as the court would it as to the sentence rec-. *17 jury. ommendation to be made These answers were sufficient for the court to conclude that defendant had not established that prevent Parker’s views substantially impair would perform- juror. ance of his Further, duties as a we note that defendant did not challenge Parker Morgan for cause based on has, therefore, not preserved argument this for review. Defendant also argues that the trial court erred allowing
the challenge for cause to Parker on the basis that his voir dire properly showed he would be apply pre unable to the law on the sumption of During innocence. dire, following voir col loquy occurred: you have an understand- [Mr.Parker] Do [Defense Counsel]:
ing general way in a say of what is meant when I that the defend- presumed ant is to be innocent? (Nods head), yes,
Juror: sir. you Um, general do have some idea in a [Defense Counsel]: way say of what I mean when I charged that when a crime is prove State has to sometimes . . . five or six elements? (Nods head).
Juror: Um, you if Judge instructed [Defense Counsel]: prove beyond State had to four elements or facts a reasonable prove charge proved doubt to a three, you and the State would have returning hesitation about guilty? verdict of not Depending facts, try but, on the I go that, would Juror: mean, may I depending mean, on the facts I be hesitant. I I don’t try. know about the case. But I would try You would what?
[Defense Counsel]: proved Juror: To make all four elements be before I said guilty. was THE SUPREME COURT IN
STATEv. PERKINS N.C.254 you saying that —are Would—would —I [Defense Counsel]: your you mean, put mouth, I but seem to don’t want to words hesitancy regard? have in that some heavily Well, said, depends I on the facts. If three it Juror: try may outweighed one, go I be I’m sure I would hesitant. law. according to the you your response last Parker, Mr. The Court: try you law; what
would to follow is that said? Juror: Uh-huh. conference, challenged counsel Parker for
After bench defense following questions: then asked Parker the cause. court Parker, right. you All haven’t Mr. done The Court: I— just you couple questions anything wrong. I want to ask myself. Okay.
Juror: *18 you you seat, sir, Are sit in that if able to are [The Court]: you juror, chosen would be able to listen to the evidence in as a case, sir, arguments to of counsel at the conclusion of this listen you reaching give the and listen to the law that I in a evidence you verdict, impartial be a and would able to reach fair and ver- dict, sir? Yes,
Juror: sir. you explain I Would be able to follow the law as [The Court]: you, it to sir? Yes,
Juror: sir. you. right. All Thank [The Court]: is denied. Challenge
Defendant, relying Cunningham, on v. 429 State Hightower, 718 331 417 (1993), S.E.2d and State N.C. S.E.2d colloquy willing was (1992), argues that this shows Parker to proof forego holding State to its of elements if the burden certain majority proven a the been his thought he elements had satis- explanations per- Cunningham faction. In after of the law several presumption innocence, prospective juror taining to continued equivocate proving defendant We concluded about innocence.
STATE jury voir dire challenged per- demonstrated venire son was confused or had a misunderstanding pre- fundamental sumption simply apply princi- of innocence or was reluctant those ples present if defense did not evidence of defendant’s innocence. case, juror’s In that reason, amply for whichever sup- answers ported a conclusion that she would not be a able render verdict in accordance with the Hightower law North Carolina. In prospective juror try said that he would to follow the law but that the testify might defendant’s failure to “stick the back of mind.” [his] unequiv- S.E.2d at 239. In this case Parker stated ocally explained that he would follow the law as to him the court. given This answer during colloquy finding in regard guilty even proved. if all the crime not elements are Moreover, dire, later unequivocally on voir Parker stated that even if thought be might guilty beyond defendant doubt, but was not satisfied reasonable he would not hesitate to guilty. find defendant not Cunningham Hightower, Unlike Parker’s answers do not demonstrate that he could return verdict in accordance with the law juror. of North Carolina or be a impartial would not fair and 15A-I212(8) (9) (1988). N.C.G.S. Weconclude the trial court did denying not err in the challenge for cause to Parker. Defendant also contends under this assignment of error that the by refusing
trial court challenge erred to allow his for cause to prospective juror Ayers. Ayers Charles stated on voir dire that he had known young girl strong who was murdered had and that he feelings likely about which it he would take into the room. The Ayers strong court asked feelings prevent whether his would him being impartial they from a fair and juror, and he said not. We would conclude that the trial denying court did not err challenge Ayers. cause to assignment This of error is overruled.
[7] In his next assignment error, defendant contends that pretrial publicity surrounding require the homicide was so a extensive as to special or a change county. argues venue venire from He another publicity impossible that this made it for him fair to receive a County jury. a Pitt provides great prejudice
“N.C.G.S. 15A-957
that if
so
a
there is
against
county
a
in
charged
the
in which he is
that he can
trial,
not receive a fair
court
the
the
must transfer
case
another
county
special
county.”
Best,
or order a
venire from another
State v.
502, 510,
45,
342
50,
denied, - U.S. -,
N.C.
467 S.E.2d
cert.
136
COURT
IN THE SUPREME
276
v. PERKINS
moving
is
the
on the
(1996).
2d
Under this statute
burden
L. Ed.
“
likely
reasonably
prospective jurors
‘it is
party to show that
that
pretrial
rather
upon
information
their decision in the case
would base
be unable to remove
presented at trial and would
than the evidence
impressions they might have
any preconceived
minds
from their
”
489,
591,
497, 319 S.E.2d
597-98
Gardner,
v.
311 N.C.
formed.’ State
239, 255,
Jerrett,
(quoting
v.
(1984)
State
(1985).
L. Ed. 2d 369
Relevant
denied, 469 U.S.
(1983)), cert.
testimony by
jurors
they
prospective
that
can
is
to this determination
pretrial
presented and
on
on
evidence
the case based
decide
any
State
evidence received outside
courtroom.
publicity or
other
Hunt,
(1988), sentence vacated on
Our review of the question- denying change for a of venue. After not err in the motion they opinion jurors an on ten who indicated had formed based ing, jurors of the selected pretrial publicity were excused. Several jurors selected who had seen had not heard of case. Those serve television, newspa- it case read about something about the opinion an it word of mouth had not formed pers, heard about they information. said could set aside such about the case and juror who sat on the case was biased The record discloses no prosecution of what in favor of the reason against defendant or reported by newspapers assignment of error is or television. This was overruled.
GUILT-INNOCENCEPHASE Defendant next assigns error the court’s denial of motion or, alternative, juror mis in the for the removal a for mistrial trial, Nancy Letchworth, deputy supe During clerk of conduct. by Tammy judge she been court, presiding told the had told rior deputy court, that Beachum and Alecia Beachum, another clerk case, baby-sitter. Staton, juror had the same When Beachum this baby-sitter, Wendy Clark, picked up child, the told Beachum that her juror had Clark that had decided defendant Staton told except holdout, put be and, for one felt defendant should guilty death. presence jury. Clark tes- hearing held a out of the court jurors her defendant was juror Staton had told believed
tified that put except juror, be to death. and, for one believed should guilty her, is what Clark had told testified that this information Beachum *20 STATE v. PERKINS testimony
and Letchworth corroborated the of Beachum. Each of the jurors questioned separately; was them, including Staton, and each of having opinion denied guilt formed an as to the of defendant. Juror jurors Staton denied telling Clark that the believed defendant was guilty they or that favored a death sentence. superior (i) court found as facts that Staton did have a con-
versation with her baby-sitter, (ii) that the court could not determine conversation, jurors the content of the (iii) that all fourteen denied having opinion formed an guilt defendant, as to the innocence (iv) jurors having opinion punish- that the denied formed an ment. juror The court refused to declare a mistrial or to excuse Staton. grant
The decision to ground juror mistrial on the miscon- largely duct rests within the discretion of the trial court. The court’s decision will not be showing disturbed unless there is a clear Bonney, court abused its discretion. State v.
Upon inquiry by court, juror the trial Clark stated that Staton jurors never indicated when or where the among communication juror occurred. Clark stated that the holdout was never identified. Furthermore, the regarding evidence was unclear when the conver- juror place what, any- sation between Staton and Clark took if thing, was said about the case. Juror Staton testified that she had not day even alleged been to Clark’s home the conversation took place; instead, dropped picked up her husband off and their child on day. significant upon Even more is that extensive examination juror court, jurors Staton having and each of the other denied expressed any opinion regarding formed or the guilt of defendant or imposed guilty. the sentence to be if he were found The court made findings of fact consistent with the evidence and concluded that juror Moreover, hap- there had been no pened misconduct. if the incident by Clark, as described no outside influence was exerted on the jury. by refusing Wehold that the court did not abuse its discretion juror declare a assignment mistrial or to excuse Staton. This of error is overruled.
[9] Next, assigns error to the court’s failure to allow videotaped three-year-old into evidence a interview of Michael “Champ” Raymond psychologist Moore conducted child Dr. argues videotape properly Webster. Defendant that authenti impeach hearsay cated and that it should have been admitted to *21 THE SUPREME COURT IN v. PERKINS (1997)] [345 by Champ Moore, present in the testimony who was of a statement when his sister died. room Elks testified at trial about state- Investigator Connie
Juvenile videotaped April 1992,prior to the Champ made to her on 19 ments Champ told her defend- with Dr. Webster. She testified that interview “nasty”videotape, and “made finger, ant bitten his watched had [the respond pillow, to fur- He mentioned the but would not dead.” victim] sponta- statements were admitted under questioning. ther These hearsay 8C-1, exception rule. See N.C.G.S. § utterance neous (1992). 803(2) Rule videotape attempted of an interview
Defendant
to introduce
Champ
approximately ten
place between
and Dr. Webster
that took
videotape
days
argues this
would have
killing.
after the
Defendant
Ricky
properly
impeached
testimony
that Detective
Best
Elks’
and
participants
tape
identifying the two
authenticated the
custody
tape
making.
since its
See State
keeping the
in his continuous
Stager,
trial court Champ hearsay testimony to what told her. to the rule the of Elks as Champ argues that did not witness the death of his ample acquired and that there was time for him to have sec sister prior making his ondhand information about his sister’s death argues that the admission of this testi alleged statements. Defendant prejudiced him mony rights Confrontation Clause violated his STATE guilt-innocence phase and in sentencing proceeding of his trial. April
Elks testified
approximately
that on 19
1992 at
p.m.,
1:00
Champ Moore told
Dog,”
her that “Sea
defendant, had bitten him
while he was on
“Doe-Doe,”
the bed with
Champ
his sister.
said that
defendant had
him
“nasty” tape.
made
watch a
He also stated that
“[mjommy
up
woke
and Doe-Doe was dead” and that “Sea Dog made
*22
her dead.” The trial court admitted these statements under the
exception
excited utterance
hearsay
to the
rule.
8C-1,
N.C.G.S.§
Rule
803(2).
scope
exception
of this
expanded
has been
where chil
hearsay
dren are the
declarants.
Reeves,
See State v.
700,
337 N.C.
448
(1994),
S.E.2d 802
cert. denied, - U.S. -,
131L. Ed. 2d 860 (1995);
Smith,
76,
State v.
315 N.C.
337
(1985).
S.E.2d 833
In this case the
child made his
approximately
statements
ten hours after the murder
and one
body
hour after the
had been discovered. He had been
through
startling
experience witnessing his sister’s death—that
—
suspended
thought.
reflective
Furthermore, his statements were
spontaneous; nothing
supports
in the record
defendant’s contention
that the statements were fabricated or the result of secondhand infor
Smith,
mation.
86-90,
See
tion of the closing argument: you’ll say, As I types be able to consider both of murder in the degree say you first and I that in important this case that it’s you you look at both and can return a verdict guilty under both theories of murder in degree. impact the first And the your you consider —should find the guilty defendant of murder in degree the first theories, under both gives judge greater option punishment. with regard say you again So I important that it’s to consider both.
Defendant contends that
making
argument
prosecutor
this
improperly urged
jury
to convict defendant of both theories of
potential
murder based on
greater punishment
presented
rather than the evidence
at trial.
Martin,
See State v.
322
229,
367
(1988).
S.E.2d 618
argues
that the trial court
v. PERKINS
by denying
jury
instruction to the
giving a curative
erred
not
for a
motion
mistrial.
object
argu
not
to the
defendant did
We note at the outset that
his motion for a mistrial
made
did
make
ment when it was
object at
Where a
does not
after
had retired.
defendant
until
trial
need not
improper
argument, the
court
allegedly
to an
grossly improper
argument
is “so
mero motu unless
intervene ex
Zuniga,
233, 257,
process.”
320 N.C.
to be a
of due
State v.
denial
(1987).
914,
denied,
959,
Assuming the trial court’s failure to intervene denied decide whether decide largely the discretion of the trial court to a fair trial. “It is improper potential will effects of an when how it correct the by proper by counsel, argument argument stopping either jury.” Scott, 309, 314, S.E.2d instructions to 296, State *23 correctly legal on the standard The court instructed the trial apply determining guilt to and on the effect of the State’s it was beyond a doubt. carry proving guilt to its burden reasonable failure of guilty under persuaded We are that the rendered verdict not prosecutor’s argu- on the both theories of murder based overwhelming guilt. on the evidence ment rather than prosecutor’s argument We that impropriety conclude subse- judge’s error in failure to intervene was cured quent argument in this was not so instructions the law. case improper require judge to ex mero motu or as to intervene assignment a mistrial. This of error is overruled. declare In his next assignment error, defendant contends questions propounded by allowing on cross- trial court erred certain Billy Royal, Dr. a foren to one of defendant’s witnesses. examination capacity distinguish psychologist, sic testified that defendant’s premeditate and to actions was diminished right wrong from killing. time colloquy following occurred between On cross-examination Royal prosecutor: Dr.
IN SUPREME COURT THE v. PERKINS Q: you you for awhile in the I testified and said worked believe hospital; right, Dix is sir? unit at Dorothea that forensic IA: did.
Q: unit, you, sir? you were from that weren’t And fired A: No.
Q: were removed from that unit? You A: I from that unit. transferred
Q: true, misconduct; For isn’t sir? Objection.
[Defense Counsel]:
The Court: Overruled. No,
A: that’s true. time, ah, psychiatrist] Dix Doctor period A: Over [Dorothea some, ah, um, because he felt disagreement, and I had Rollins kept patients long I .... too years, um, that, ah, had or six there Um, after some five um, that, and occasion one some, about on one been patient discussion ah, complaint, ah, the administration related made a my patient.... with contact hospital administrator and
And, ah, I discussed that with the my with Doctor Rollins to continuing in terms of conflict decided . I did. . . another division which transfer to Q: unit at Dorothea regard leaving . . with the forensic And . *24 you you complaint caused patient some made a Dix said you you making allegations that leave; then that related some— true, patient; improper a isn’t that sir? had made advances to Objection. [Defense Counsel]:
A: No. may You answer. Overruled.
The Court: (Shakes head). A:
STATE Q: then, What was the of it nature sir? patient complaint.
A: I have never familiar The made been with complaint. the total
Q: complaint? are not You familiar with the A: No.
Specific may, instances of misconduct of witness the discre inquired court, pro tion of the trial be into cross-examination if 8C-1, bative of truthfulness or 608(b) untruthfulness. N.C.G.S. Rule § (1992). arguendo if we per Even assume that the trial court erred prosecutor inquire mitting allegation Royal into the had improper patient, prej made advances to a defendant must still show may any udice. “Awitness be cross-examined on matter relevant to any case, including credibility.” 8C-1, issue in § N.C.G.S. Rule 611(b) (1992); Lee, 244, accord 271, 547, State 335 N.C. 439 S.E.2d denied, cert. 513 U.S. 130L. 2d 162 (1994); Ed. see Kenneth Broun, S. Brandis Broun on North Carolina (4th § Evidence 154 may impeached by ed. 1993). A witness be showing that he or she is McKeithan, 722, 730, biased. State v. questions asking Royal
(1977). fired, The whether removed, had been Royal may transferred misconduct were relevant show that Royal have against been biased the State. testified that he had not fired, removed, been or transferred for misconduct. He denied mak ing any improper patient. light to a In advances overwhelming against Royal’s express evidence defendant and denial of mis conduct, we that, conclude that defendant cannot show had the trial prosecutor’s inquiry court excluded the into the allega details tion, possibility a reasonable exists that different outcome would have 15A-1443(a) resulted trial. See N.C.G.S. This assign ment of error is overruled.
SENTENCINGPROCEEDING Defendant next contends that the court erred allowing prosecutor highly prejudicial to elicit irrelevant and information during his cross-examination of defense witness Sudie Davis. In the testimony course of the direct defendant, Sudie Davis for Davis read from letters jail. defendant had written to her while he was in wrote in “pretty good the letters that was a person,” he thought daily,” “about the Lord give knew should his life to the prosecutor Lord. The asked Davis on cross-examination whether she raping daughter had accused defendant her court *25 283 COURT IN THE SUPREME STATE v. PERKINS question. argues that this objection to this
overruled an (i) it was allowed on the bases question should not have been character; (ii) it con- of bad and inadmissible evidence irrelevant crime; (iii) probative its accusation of an unsubstantiated cerned prejudice under danger of unfair outweighed value was 8C-1, N.C.G.S. Rule 403. placed capital sentencing proceeding has
“Where a defendant in a favorably testify with by having witnesses character at issue his testimony.” may to rebut this regard it, the State offer evidence Williams, 1, 49, 245, (1994), 452 S.E.2d 273-74 cert. v. State Davis read from letters denied, - U.S. -, 133 L. Ed. 2d “pretty person,” that he good that he was a in which defendant stated give he daily,” Lord and that he knew should thought “about the reputa evidence tended to enhance defendant’s life to the Lord. This Accordingly, we conclude that good and show character. tion rebut it. information from Davis to prosecutor was entitled to elicit overruled. assignment This of error is In his next assignment error, defendant contends prosecutor defend by allowing the to cross-examine
trial court erred prior conviction. On length of time he served for ant about the testimony prosecutor that in 1981 elicited cross-examination attempted years prison for sentenced to fifteen defendant had been long how rape. prosecutor asked defendant objection, defend served; and, the court overruled defendant’s after or 1987. Defendant also he had been released in 1986 ant stated that years prison drug con ten for he had been sentenced to stated that ten-year and a consecutive five- two sentences victions in 1988and to charges in year drug-related sentence for with prosecutor’s cross-examination
Defendant contends that rape actually attempted served for respect length of the time he prior impeachment evidence of proper limits of exceeded the parole eligibility into improperly injected the issue of conviction argues also that the admission sentencing proceeding. Defendant parole eligibility. entitled him to an instruction of this evidence scope inquiry prior convictions permissible into “The crime, ... to the name of the impeachment purposes is restricted punishment imposed.” conviction, and the place the time (1993); see Lynch, v. State Evidence However, the Rules of 8C-1, 609(a) (1992). Rule N.C.G.S. § Any evidence that the capital sentencing proceedings. apply at do not *26 (1997)] N.C. 254 [345 may court deems sentencing relevant to be introduced in the sentencing proceeding. N.C.G.S. 15A-2000(a)(3) (1988) (amended § 1994); Daughtry, State v. 488, 517, 340 N.C. 747, 459 S.E.2d —
(1995),
denied,
U.S. -,
cert.
133L. Ed.
(1996).
2d 739
Evidence
showing that
previously
defendant had been
attempted
convicted of
rape
was admissible to
aggravating
establish the
circum
stance that
previously
defendant had been
convicted of a
“[t]he
felony involving the use or
person.”
threat of violence to the
N.C.G.S.
15A-2000(e)(3);
Holden,
§
see State v.
394,
338 N.C.
cert. 513 U.S. L. 130 Ed. 2d 547 (1994). After careful review record, prosecutor’s we conclude inquiry did not raise the issue of eligibility parole defendant’s in the event the imprisonment. recommended sentence of life Accordingly, defendant was not parole entitled to an instruction on eligibility.This assignment of error is overruled.
In his next assignment error, defendant contends that the trial court erred overruling objections argu- various COURT
IN THE SUPREME v. PERKINS proceeding clos- prosecutor during sentencing made ments addi- tu with an by failing ex mero mo to intervene ing argument argument. tional latitude in proposition, is allowed wide general
As a
counsel
sentencing proceeding. State
during
jury argument
permit-
(1992).
is
47,
State v. 1254, L. denied, 129 Ed. 2d 895 512 U.S. cert. argues that the following argument improperly put jurors place of the victim:
the in the that back day April of in yourselves on that 19th of
Put back daybed in a little night light on, and Jo-Jo bedroom, a old red little night. brother, of the Just year in the middle three old with her put yourself in her shoes— Objection, Your Honor. Counsel]:
[Defense Overruled. The Court: continues)
([The prosecutor] put just minute, just yourselves, for a minute. Put —for daybed you’re in little in the yourselves And where she was. you you up wake and sit some reason night of the and for middle you you something and had or up Something had startled bed. pushes you on the up and he down there is sat and [defendant] you, pillow, your starts suffocate bed, little face with covers turning you’re twisting and and rape you. you, and And smother he continues and he breath, and gasping for continues breath, only you your legs are gasping for not are continues. And you. year penis A old pushing his into seven apart and he’s spread you’re goes it on until it on and goes goes And it on and child. unconscious. v. jurors put
“An argument ‘asking
place
the
themselves in
of the
victims will not be
(quot-
condoned....’”
Id.
In we process McCollum concluded that the defendant’s due rights prosecutor’s had not (i) arguments been violated where the did manipulate evidence, prosecutor’s not or (ii) argu- misstate the the implicate ments did not the right right to counsel silent, (iii) remain the trial court instructed the to make its deci- sion on the basis the evidence arguments alone and that the evidence, counsel (iv) sup- were not the weight of the evidence porting aggravating heavy. the present circumstances was In Id. the prosecutor’s argument manipulate case did not or misstate the argument implicate any evidence. The did specific rights accused, right such as right to counsel or the to remain silent. overwhelming The State’s evidence raped that defendant victim, smothered the strongly supported and the evidence each of aggravating jury. circumstances found On we this record likely jury’s conclude that it not is decision was influenced portion prosecutor’s argument asking jurors put *28 position themselves Therefore, prosecutor’s the victim. argument deny process. did not defendant due [17] Defendant next argues, citing Williams, 317 N.C. 474, 346 S.E.2d 405, that objection the court overruling portion erred his to a prosecutor’s argument suggesting that defendant killed the victim prevent to against her from testifying argues him. Defendant that support there was no argument. evidence to this Even if we assume arguendo portion prosecutor’s that this of the argument was improper, we process. conclude that it did not violate right his to due light In of the overwhelming showing evidence guilt imposition supporting penalty, unlikely the death it is that this portion prosecutor’s argument jury’s sentencing influenced the recommendation.
[18] Defendant next argues that the trial court erred overruling objections to following argument: just sorry. He’s going you just I’m tell like it is. Just basic right sorry. you, down tell the man is The word—to describe him as a man an all is affront to of us. 287
STATE v. PERKINS argument. Objection, improper Counsel]: [Defense Overruled. The Court: prosecutor] continues)
([The really say is, the rules of this court I I what he but wish could prevent saying from it. me Objection, Your Honor. Counsel]:
[Defense The Court: Overruled.
([The prosecutor] continues) sorry your hearts, you know how you heart of But know . . is. . comparisons of criminal we do sanction
Wehave stated “that not Richardson, kingdom.” of the animal State v. defendants to members denied, - U.S. -, 685, 697, cert. 162, 173, Hamlet, (1996); L. Ed. 2d 160 accord State prose By issue, argument (1984). making S.E.2d by any other an “animal” or refer him did not call defendant cutor we isolated, and con remarks at issue were disparaging term. The objec by overruling defendant’s did not err clude that the court tion to them. Defendant next argues that the trial court erred by failing following argument: in the mero motu
intervene ex felony the defendant under was committed while “A Well, you disturbance.” of mental or emotional the influence just plain He’s mean. they just plain mean. know, used to call they in, call it an They category put it so even find can’t emotional or mental disturbance. Therefore, object argument at trial. this did this grossly it so only to whether was determine
argument is reviewable
ex mero
failing to intervene
improper
the trial court erred
*29
365, 424,
459
Gregory, 340 N.C.
error. State v.
motu
correct
denied, - U.S. -,
[20] Next, defendant argues that the trial court committed plain give jury failing limiting informing error the a instruction it not rape especially to consider the determining when whether the atrocious, heinous, or aggravating cruel circumstance existed. The jury trial court submitted to the the aggravating circumstances was engaged that committed while defendant murder attempt of or first-degree rape, the commission an to commit 15A-2000(e)(5), especially § N.C.G.S. and that the murder was heinous, atrocious, cruel, or N.C.G.S. 15A-2000(e)(9). permit concedes jury that the evidence was sufficient to find argues only the existence of both circumstances. He that the trial jury erred permitting showing court to consider evidence that raped support victim for both circumstances. object given by Defendant did not to the instruction the court or request a limiting Accordingly, instruction. our review is limited to determining plain whether court’s instructions constituted error. plain
“In error, order to rise to the level of the error in the trial court’s instructions must be (i) error, so fundamental that absent verdict; would have reached different (ii) or the error justice would constitute miscarriage if not corrected.” State v. White, 264, 299, 841, 862, denied, - U.S. 457 S.E.2d cert. -, 133L. Ed. 436 (1995); Collins, 54, 2d accord State 62, v. 334 N.C. (1993). previously 431 S.E.2d Wehave that a concluded plain court did not commit failing error instruct the sexually raped evidence the defendant assaulted the victim finding especially should not be considered in heinous, atrocious, Moseley, cruel circumstance. State 412, 445 (1994), denied, - U.S. -, cert. L. 131 Ed. 2d 738 raped evidence trial established that defendant the seven- year-old pillow. victim while he smothered her with The medical examiner testified that it have twenty would taken ten to minutes for the victim to die and that the victim have would been conscious for period. during three seven minutes this The victim shared a room grandmother three-year-old her brother, with and her and defendant apparently raped they present smothered the victim while were and while the victim’s brother watched. On this record we conclude *30 THE SUPREME COURT
IN v. STATE PERKINS (1997)] [345 any jury’s of the evi- failing error in to limit the consideration plain Accordingly, See id. this did not rise the level of error. dence to is overruled. assignment error Defendant next contends that the trial court erred by denying prior sentencing. request jury to address the
defendant’s have have a defendant does not concedes that we held that Defendant constitutional, statutory, right or law make unsworn common jury at the sentenc of fact to the conclusion statements proceeding. Green, 443 S.E.2d We decline ing prior assignment of error is holding on this issue. This our reconsider overruled. ISSUES
PRESERVATION this Court’s eight forth additional issues for brings candidly issues concedes that these In brief defendant review. posi- adversely to his previously decided this Court have been prior these deci- Nevertheless, defendant asks us to reevaluate tion. per- arguments, are not Having defendant’s we sions. considered are assignments of error prior holdings. to abandon These suaded our overruled.
PROPORTIONALITY proceeding capital sentencing Having found trial and statutory error, prejudicial we must undertake our free from to be supports (i) aggravating duty determine whether evidence jury; passion, prejudice, or other (ii) found circumstances imposition sentence; and of the death arbitrary factor influenced the disproportionate to is “excessive or the death sentence (iii) cases, and the imposed considering both the crime penalty in similar 15A-2000(d)(2). N.C.G.S. § defendant.” murder on both based
Defendant was convicted was also con- felony premeditation and deliberation. He murder and aggravating all three of the first-degree rape. The found victed of (i) had its defendant submitted for consideration: circumstances threat of felony involving use or previously been convicted 15A-2000(e)(3); (ii) the murder person, N.C.G.S. § violence to the in the engaged while defendant was committed first-degree rape, N.C.G.S. attempt to of or commit an commission especially heinous, atro- 15A-2000(e)(5); (iii) the murder was § statu- cruel, found the 15A-2000(e)(9). cious, N.C.G.S. appre- capacity of defendant tory mitigating circumstance IN THE SUPREME COURT *31 criminality date the of his or to conduct conform his conduct to the requirements of impaired, the law was 15A-2000(f)(6), N.C.G.S. rejected the circumstance that the murder was committed while defendant was under the of influence mental or emotional disturb- ance, 15A-2000(f)(2). N.C.G.S.§
[22] We have reviewed the evidence supporting each of the aggra vating supports circumstances and conclude that the evidence each of them. further We conclude from our review the of record that imposed of sentence death was not under influence of passion, prejudice, arbitrary other factor. We must now de termine whether the death in is sentence of this case excessive or disproportionate. purpose proportionality
One
possi
review is “to
eliminate
bility
person
that a
will be sentenced to die
the action
an aber
jury.”
rant
v. Holden,
125, 164-65,
State
321
513,
N.C.
362 S.E.2d
537
(1987),
denied,
1061,
(1988).
cert.
486 U.S.
“In
review,
proper
compare
our
it
present
is
case with other cases in
this
which
Court has concluded that the
penalty
disproportionate.”
death
Burke,
129,
State v.
343 N.C.
162,
901, 918,
denied,
469 S.E.2d
- U.S. —,
cert.
136L. Ed. 2d 409
(1996). This Court has
determined
sentence of death was dis
proportionate in seven
v. Benson,
318,
cases. State
323 N.C.
372
517;
Stokes,
1,
S.E.2d
State v.
(1987);
“None of the cases
288,
Elliott,
242,
N.C.
475 S.E.2d
v.
344
murder of a child.” State
-
-,
65
denied, -
-,
L. Ed. 2d
(1996), cert.
U.S.
224
419, 455,
Kandies,
N.C.
467
State v.
(1997);
see
U.S.L.W.
(1996);
denied, - U.S. -,
We conclude
disproportionate. In
penalty not to be
Court has held the death
this
four-year-
murdering
guilty
defendant was found
Kandies the
penalty,
death
we
upholding
fiancée. In
daughter
old
of his
of both
guilty
was found
on the bases
emphasized that the defendant
deliberation;
premeditation and
felony
rule and
murder
heinous, atrocious,
cruel;
or
especially
jury
the murder to be
found
defendant; that the murder
and trusted the
that the victim knew
assault;
that the vic
of a sexual
during the commission
occurred
brutally beaten,
pain
was
stran
physical
in that she
great
tim suffered
87. la Elliott
Kandies,
at
467 S.E.2d at
raped.
gled, and
defendant had assumed
upheld
penalty where the
we
the death
victim;
had bru
young
the defendant
parental
caring
role in
for the
first-degree
victim;
defendant was convicted
tally beaten the
deliberation;
and the
premeditation and
murder on the basis of
espe
the murder was
circumstance that
aggravating
the sole
found
289-90,
at
heinous, atrocious,
cruel. 344 N.C.
cially
(1995), cert.
263,
STATE We hold that defendant received a fair trial and sentenc- ing hearing prejudicial free from Comparing error. defendant’s case penalty imposed to similar cases in which the death was and consid- ering defendant, both the crime and we cannot hold as a matter of penalty disproportionate law that the death or excessive. NO ERROR. dissenting.
Justice Webb I I prospective juror dissent. believe it was error to excuse WilliamE. Jackson cause. Mr. Jackson was excused based on the colloquy: following very carefully, Jackson, Court: Please listen Mr. to the
following questions. your responses carefully Consider before you respond. you juror If case, are selected to serve as a in this you explained you by can and will follow the law as it will be deciding the Court in whether the guilty guilty defendant is or not first-degree murder or of other lesser offense? Yes, Juror: sir. you beyond If are satisfied a reasonable doubt The Court: things necessary
of those first-degree murder, to constitute can you and will vote to return a guilty verdict of *33 you though murder even know that possible death is one of the penalties? Yes,
Juror: sir. your personal Considering . beliefs . . about the The Court: penalty, please death you state for me whether would be able or unable to vote for a penalty recommendation of the death even you beyond though are satisfied a reasonable doubt of the three things required by concerning law the aggravating mitigating previously circumstances mentioned. I don’t I could vote on the death
Juror: know whether penalty. response Is that an able response, or unable sir?
The Court: respond Juror: Unable to to that.
STATE v. PERKINS The Court: Unable. Thank you. Jackson, Mr. excuse me. If the defendant is con- Staten — you law of first-degree murder, can and will follow the
victed to to the sentence recommendation be made North Carolina as explain jury as Court will it? Yes, sir. Juror: Morgan Illinois, 719, 734-35,119 majority, relying 504 U.S. questions says law’ are “general
L. ‘follow the (1992), Ed. 2d jurors preventing or sub- those with views not sufficient to ‘detect their stantially their duties in accordance with instructions impairing ” colloquy case, in this I the context and oath.’ submit general far follow the questions to Mr. Jackson were more than questions. law questions penalty. concerning asked the death
Mr. Jackson was guilty first-degree murder that he return a verdict He said would beyond things a of those neces- if was satisfied reasonable doubt he knew would sary first-degree although murder he death to constitute respond penalty. he to possible He then said was unable be ability penalty if question for the death he was satis- his vote require the beyond things of those which reasonable doubt fied Mr. whether he could penalty. The court then asked Jackson death if the defendant the law as to the sentence recommendation follow “Yes, said, sir.” guilty of murder. Mr.Jackson were found question general asked Mr.Jackson not a “follow The last specific question question. was a “follow law” directed law” It ability penalty. been told for the death Mr. Jackson had vote guilt proceeding then a a trial to determine that there would be penalty He to know would be death. had to determine whether being that was questioned sentencing proceeding he when about penalty, vote the death he said whether he could asked could do so. he ambiguous gave an answer appears me that Mr. Jackson
It question his abil- respond to the about when he said was unable to no penalty. then “Yes”with *34 ity impose He answered the death only inter- question could be when was asked a which ambiguity if penalty preted would vote for the death asking him whether he Mr. required by I was error to excuse Jackson it law. believe it was showing. this IN THE
294 SUPREME COURT v.
STATE WOODS sentencing proceeding. Rannels, I a new vote for State 333 joins opinion. dissenting Justice FRYE in this OF NORTH v. DARRELL CAROLINA CHRISTOPHER WOODS
No. 228A95 (Filed 1997) 10 February (NCI4th Rev.)— 1. Law capital sentencing— § Criminal prosecutor’s argument acknowledgement —absence wrongdoing testify a comment on failure to — not capital was sentencing hearing
There no error in where prosecutor improperly defendant contended that the commented testify gave on his not to where decision at least two different accounts of involvement to law enforcement offi- days context, prosecutor’s cials within two murder. In of the was not testify, comment directed defendant’s failure to but was an effort convince that there was no evidence acknowledgement days of an wrongdoing within two prosecutor’s argument reasonably murder. The here was comparable arguments improper which have been to be held testify. comments on a failure 2d, Am Jur Trial 577-582. §§ Supreme by prose- Court’s as to views what comments cuting attorney privilege against violate accused’s self- incrimination under Federal Fifth Constitution’s Amend- ment. L. Ed. 2d 926. (NCI4th Rev.)— capital Law sentencing— Criminal entry apartment prosecutor’s argu-
forcible into victim’s — permissible inference ment — was closing arguments There no error in ain sentenc- ing hearing where defendant contended that there was no evi- support argument dence to the State’s that defendant had forced entry apartment, into victim’s but there sufficient evi- juror which a dence from could find that defendant either forced notes 19, 23, the North Carolina Constitution. and 26 of for their only veniremen were excused percent of white five thirty-five percent penalty, while of black opposition to the death far less argues the selected were so excused. He veniremen originally called. community the venire representative of the than