*1 IN THE COURT OF APPEALS 207
STATE
ROSS
v.
App.
(1990)]
207
N.C.
[100
152, 163-64,
375,
State v.
319
Evangelista,
N.C.
353 S.E.2d
383-84
(1987)(citations omitted).
method,
It
reliability
is the
of the scientific
and not its
within
popularity
community,
a scientific
that is
Bullard,
v.
relevant focus. State
(1984).
370,
course,
381-82
The
of
judge,
enjoys “wide
of
latitude
when deciding
testimony.
discretion”
whether
expert
allow
164,
discretion,
Evangelista, 319
at
N.C.
Second, I respectfully with the ex- disagree majority that the clusion Way of evidence practices about International in “harmless context” of PEP’s best interests. determining th[e] interests, In determining may a child’s best the judge properly parents’ consider the religious practices. beliefs and In re Custody Cf. 418, (1971)(in 11 King, App. 181 finding S.E.2d 221 of changed circumstances, trial entered judge finding that mother activities); participated local see v. Rogers Rogers, church 490 (Fla. 1986) So.2d 1019 Dist. (adopting holding Ct. Supreme may Alabama Court that beliefs and con- practices determination, custody sidered as factor in custody but award of may not on of parent’s be conditioned restriction First Amendment Annotation, rights); see as generally Religion Custody Factor Child Cases, case, and Visitation 971 every A.L.R.4th In this considered, relevant factor should have been I hold and would not the failure so to do was harmless. STATE OF CAROLINA v. JAMES KEITH ROSS NORTH
No. 8929SC1143 (Filed 1990) September (NCI3d)— Homicide requirement self-defense —court’s plain notice written —no error
The trial did not error requiring court commit rely upon notice defendant to submit written of intent OF APPEALS IN THE COURT STATE BOSS *2 statutory if there no in a homicide case even is self-defense for notice. requirement such 519; 2d, 139, §§ § Trial 92. Homicide
Am Jur — — (NCI3d) rely intent to on self-defense court’s § 2. Homicide jury plain error remarks venire —no trial court to inform was not error It rely intent self-defense even upon venire of defendant’s may error the court’s have been had defendant action though a mistrial. objected or moved for 519; 2d, 139, §§ § Trial 92. Am Jur Homicide — (NCI3d) —prior § 3. Criminal Law 34.7 murders homosexual admissibility pat- to show motive and activities defendant — tern conduct boy ac- testimony teenage about homosexual teenage in with him and the two engaged tivities defendant in a murder to show motive prosecution victims was admissible victims of conduct toward the consistent pattern theory they that defendant killed victims after State’s his expose defendant’s sexual orientation and threatened community they by him paid activities to the unless were 404(b). 8C-1, Rule keep quiet. N.C.G.S. § 2d, §§ 326. Am Jur Evidence (NCI3d)— years § 4. Law conviction over ten Criminal 86.2 objection old —cross-examination defendant —waiver of Even if the erred in ruling prosecution trial court than cross-examine defendant about a conviction more could old, ten when defend- years objection was waived ant on direct examina- himself testified about 609(b). 8C-1, Rule tion: N.C.G.S. § 2d, §
Am Jur Evidence 330. — (NCI3d)— relationship § 5. Criminal Law 88.4 with victim testimony as to details direct —cross-examination prosecution murder Where defendant testified in a victim, he with one it was relationship had had a homosexual rela- permissible for the State to out the details of that bring on of defendant. tionship cross-examination 2d, §§ 492. Am Jur Witnesses APPEALS IN THE OF STATE ROSS — (NCI4th| teenage boys —jury § 430 murder of
6. Criminal Law
pedophile
that defendant was homosexual
argument
teenage
the murder of two
In a
of defendant for
prosecution
that “the fact that
boys,
jury argument
the prosecutor’s
[de-
extremely impor-
is an
pedophile
was a homosexual
fendant]
case;
illegal
is
thing
because that sort of
aspect
tant
of this
constituted
under the laws of the State of North Carolina”
improper.
from the evidence and was not
a reasonable inference
463;
2d,
262.
§§
Am
Trial
Jur
Homicide
(NCI4th)—
—defendant as
jury argument
Criminal Law
*3
by
cured
instruction
sheep’s clothing —impropriety
wolf
references
Any
in the
biblical
impropriety
prosecutor’s
was a wolf
jury
in his
that defendant
argument implying
Whenthe trial court admonished
was removed
sheep’s clothing
evidence.
his
within the
prosecutor
keep
argument
2d,
463;
§
§§
Trial
262.
Am Jur
Homicide
(NCI4th)—
boys
jury
teenage
§ 436
murder of
8. Criminal Law
—
boys
other
desire toward
argument
—inference
—defendant’s
by
supported
evidence
teenage
In
for murder of two
prosecution
of defendant
that, if defendant can
boys,
jury argument
the prosecutor’s
get
he
on the street and
jury,
“then
can be out
deceive
. . . And
boys
day
within a
or two
young
his hands on more
life”
force in his
constituted
driving
that
is the ultimate
by
admissions about
inference
defendant’s
supported
reasonable
and evidence of his
his sexual relations with minor males
of a minor male.
knowledge
of forced carnal
conviction
260,
463;
218,
2d,
262.
§§
Trial
Am Jur
Homicide
(NCI4th)—
—prior
factor
aggravating
9.
Law
1185
Criminal
juvenile adjudica-
judgment
for
continued or
prayer
conviction —
tion
shown
felony
Virginia
of a 1970
The statement
in the record
imposition
defer
that the court “doth
conviction of defendant
con-
judgment
that a
for
prayer
of a sentence” did not show
-using
the trial court from
prevent
entered so as to
tinued was
sentence for second
aggravate
the conviction
improperly
was the
Virginia
murder. Nor
degree
adjudication
juvenile
it was a
ground
considered on the
APPEALS
IN THE
OF
210
specify
record of the conviction did not
where the certified
cer-
adjudication, since the
juvenile
was a
proceeding
of the facts set out therein.
tified record is
facie evidence
prima
2d,
§§
599.
Am Jur
Criminal Law
dissenting.
Judge GREENE
entered 28 March
judgment
defendant from a
APPEAL
County Superior
Court.
by Judge Claude S. Sitton
McDowell
Appeals
in the
June
Heard
Court
defendant of two counts
1985 a
convicted
August
On
two death sentences.
first-degree
given
murder. Defendant
Ross,
a new trial. See State
granted
defendant was
appeal,
On
I. the court erred in requiring Defendant first that trial argues rely file with the court a written notice of intent to defendant to venire by telling jury self-defense and upon rely object defense. Defendant did not upon intent to North written of intent relative to self-defense.No Carolina statement intent to give defendant to notice of an assert requires statute a {See, requires G.S. 15A-959which e.g., “self-defense” as a defense. defense.) insanity upon to file notice of reliance an defendants filed jury venire that he had argues telling defendant that self-defense, irreparably the trial judge an affirmative defense of he implied responsibili- it that admitted prejudiced his case because However, victims. defendant made ty for the deaths of the two comments. Rule objection judge’s preliminary no to the trial Appellate requires Rules of Procedure of the North Carolina timely in order for the objection question party present IN THE COURT OF APPEALS App. Further, preserved for appeal. defense opening counsel’s state- ment immediately following jury selection contained the following:
That Jim Ross left the room for a few minutes and when he came back into the room boys these had Jim’s .9 millimeter on, handgun they automatic and they only had it him, they threatened but tried to kill him.
I they would also contend that had his axe which was there in the same room over the wood They stove. threat- him ened with that axe and tried to kill him with that. And that Jim had no alternative. He could not retreat. That the only he thing could do is protect himself self-defense and save his own life. Having failed to preserve this issue for we appeal, must decide whether, us, under the circumstances before the trial court commit- 10(c)(4).
ted “plain error.” N.C.R. P. App. [1] After carefully reviewing record in this case we conclude that trial court did plain not commit error when required it defense counsel to submit a written rely notice of intent to upon notice, statutory self-defense. While there is requirement no for such neither is there any prohibition it. While against we cau strongly tion such against methods as standard practice legislative without enactment, we hold that under the unique circumstances of this case, particular it plain was not error to require defense to file rely notice of intent upon self-defense. We also conclude it was not error for the trial
judge
to inform the
venire of
rely upon
counsel’s intent to
15A-1213;
Hart,
self-defense. See G.S.
State v.
479,
under these court’s remarks.
II. the [3] trial court erred The defendant argues in allowing in his second the testimony assignment of a of error that teenage boy in with him engaged the defendant homosexual activities about theory in The State’s occasions. previous victims on and the two victims, teenage killed the two also the defendant this case was that sexual orien the defendant’s boys, they expose threatened after they were community paid unless to the and his activities tation that sought prove the State keep quiet. Specifically, him to while a sexual act performing was shot one of the victims defendant. relevant and that its evidence was highly We hold that this of unfair substantially any danger prejudice, outweighed relevance witness was previously misleading jury. or confusion he with the victims and observed of the defendant presence the defendant. This acts with victims homosexual engaging the testimony of conduct toward pattern to show motive and a was used theory of the case. It was with the State’s the victims consistent 404(b) (1988). 8C-1, Rule admitted. See G.S. properly III. of a conviction which Defendant also argues was more than ten that the court erred years old. The evidence admitting evidence May 1970 of had convicted on the defendant been years eleven of a male of felony knowledge of forced carnal trial, evidentiary the trial court portion age. Prior to Judge convictions. examination regarding conducted a voir dire veracity value as to probative the conviction had Sitton ruled that would allowed to cross-examine that the be prosecution judge that the failed felony. argues Defendant defendant as to which its supported and circumstances specific to detail the facts justified the conviction admitting value of finding probative 609(b)’s convic against admitting general prohibition Rule waiving 8C-1, 609; Rule State v. years old. more than ten G.S. tions (1985), disc. 334 S.E.2d Hensley, 77 N.C. denied, rev. that the State would ruling court did err Even if the trial his 1970 convic- the defendant about cross-examine permitted *6 APPEALS THE OF IN COURT v. ROSS STATE (1990)]
[100 tion, himself testified when the defendant waived objection was examination: on direct to the convictions as fact particular as to a evidence party Where one introduces transaction, introduce evidence is entitled to party the other or thereof, latter though even such or rebuttal explanation it been offered or irrelevant had incompetent evidence could be initially. (1981).(Cita- Albert,
State omitted.) the door” to cross- “opened The defendant himself tions prior on his convictions. examination
IV. impermissibly the State was next contends that Defendant of the acts” defendant about “bad cross-examine the allowed to character for the defendant’s not relate to which did defendant alleged related to objected to questions Most of the truthfulness. direct examination of the defendant. On activities homosexual (but of his that most he was a bisexual admitted that defendant men), he had a with relationships had been he had been boy, and that young a involving a sexual offense with one of relationship homosexual ongoing an engaged victims, by boy. The asked fifteen-year-old teenage questions persons with other activities to the defendant’s relating the State by counsel objected were defense this case not connected to asked questions Another line of trial court. sustained and the vic- showed one of the defendant about whether by the State to and objected at his house any homosexual movies tims Therefore, assignments these by the State. withdrawn subsequently without merit. of error are
ruled Other matters the trial court asked about and dealt specific excepted details to which of the defendant’s were over testified on direct The defendant of the victims. with one activities with this victim. relationship a sexual that he had had examination of that out the details bring for the State permissible It was relationship: is quite practice North Carolina true that remains [I]t and, it, ordinarily be made may under cross-examination liberal (1) details to elicit purposes: three to serve further direct, complete hope presenting in the related on story (2) case-, cross-examiner’s to the less
picture
unfavorable
IN THE
OF APPEALS
case;
new and different facts relevant to the whole
bring out
(3)
witness,
credibility.
doubt
or cast
on his
impeach
*7
(1988)(em-
Brandis,
3d,
1
Evidence
35
North Carolina
Witnesses §
added).
testimony.
error to
prejudicial
It was
admit this
phasis
V.
closing
further
of the State’s
argues
portions
Defendant
prejudicial
were
the
and
to the defend
arguments
outside
evidence
argument
largely
The
of the
of counsel must
left
ant.
control
to the discretion of the trial
and his
will not be
judge,
rulings
abuse of
State
showing
gross
disturbed absent a
discretion.
denied,
Woods,
v.
56
cert.
App.
N.C.
(1982).
592,
inferring sheep’s clothing. was a within keep argument trial court admonished the State to its again removed any impropriety. the evidence. This admonition prompt Woods, State See S.E.2d 574 exception statements that form the basis [8] The number 45 as follows: are
IN THE COURT OF APPEALS do, you Because know what he wants to if he can deceive you, the final and last then he can be out on the challenge, get young boys day street and his hands on more within a . . . driving or two And that is the ultimate force his life. We find that it was not a gross abuse of discretion to allow the prosecution to make these statements. The defendant’s admissions about his sexual relations with when minor males considered with his prior supported argument. the State’s The defend- ant’s sexual preferences activities formed basis of the State’s theory for the motive of defendant in killing teenage two males. appropriate subject It was therefore matter for closing arguments by the State.
VI. aggravated *8 Finally, defendant argues that the trial court erred when it defendant’s sentence based upon a valid 1970 conviction in Virginia. Defendant that the 1970 argues equivalent conviction is to a for prayer judgment continued. We find this to argument be without merit. The certified court record states the that defend ant him pleaded guilty to the and that the court charges against found him of guilty Simply abduction intent to defile. because the indictment states that it “doth imposition of a sentence defer .,” . . does not mean that it was a continued. prayer judgment We reject assignment of error.
Defendant also that the trial court argues improperly con- sidered this in the sentencing phase conviction because there was insufficient evidence to establish that the 1970 Virginia was not juvenile adjudication which would not amount to a convic- However, tion under law. Va. 16.1-179. Virginia Code certified § the 1970 copy Virginia of court record was offered and received specify juvenile into evidence. It did not was a proceeding adjudication. The certified prima record is evidence of the facie 15A-1340.4(e). facts set out therein. G.S. The defense offered § no evidence to contradict this record. We hold that the court trial properly aggravation considered this conviction of the defend- ant’s sentence. free prejudicial defendant received a fair trial error.
No error. IN THE COURT OF APPEALS ORR concurs.
Judge
Judge Greene dissents.
Judge dissenting. GREENE I with the disagree majority conclusions of the it was error “to require defense to file notice of intent rely to . . . upon self-defense for the trial judge to inform [and] to rely voir dire of the counsel’s intent upon to self-defense.” law, law,
Traditionally, the criminal unlike the practice civil “has not required specifically defendant to plead his defense. A plea guilty ordinarily of not brings possible into issue all defenses Israel, to substantive W. charge.” LaFave & J. Criminal 19.4, (1984); Todd, Procedure at 511 see State v. (1965) of not (plea guilty entitles defendant self-defense). defense, statute, rely on more By than one including North Carolina has created an exception to this rule general requiring a defendant who intends to raise the defense insanity to “file a notice of his rely intention to on the defense insanity.” 15A-959(a)(1988).Any N.C.G.S. further restriction on defend- any ant’s right assert defense is a matter which should be re- served Assembly for the General as it is not within the province of this court to carve out such exceptions. Surely the question of whether require a defendant give pre-trial notice of his not, rely intention to on majority self-defense should as the suggest, *9 be left discretion of the judge. trial
The State argue does not that either the state or federal con- stitution requires that such notice given, but instead suggests that “disclosure of an affirmative defense to trial is entirely proper.” The determination of whether notice pre-trial of self-defense proper presents only is complex questions of federal and state law, 470, see constitutional Wardius v. 412 Oregon, U.S. 37 L.Ed.2d (1973) (notice 82 of alibi statute invalidated as violating federal clause); Florida, 78, process due Williams v. 399 26 U.S. L.Ed.2d (1970)(notice 446 procedure of alibi found consistent with constitu- self-incrimination); State, tional provisions prohibiting Scott v. 519 (Alaska 1970)(notice P.2d 774 of alibi order violated state constitu- tional privilege against self-incrimination notwithstanding that U.S.
IN THE OF APPEALS 217
STATE v. MOORE N.C. 217 Supreme had determined that it did not violate federal Court con- stitution), presents questions desirability but also basic of the of procedure. desirability a notice of self-defense creating such the, clearly a is within procedure province Assembly. General (General 15A-959, Commentary See Assembly N.C.G.S. Official specifically rejected that defendant requirement give pre-trial notice defense). of alibi
Furthermore, I believe the error of the defendant requiring give pre-trial notice of his intention use self-defense became more egregious when the trial court revealed this information to error, jury. my Because opinion, was fundamental and trial, seriously affected the of the I fairness conclude error, Odom, the error to have v. been State (1983), 378 which in this requires case a new trial.
STATE OF NORTH CAROLINA STEPHEN LOUIS MOORE
No. 8929SC1224 (Filed 1990) September 4 (NCI3d)— Jury § 1. Grand purposeful 3.3 selection of black foreman —no constitutional violation
A black defendant challenging grand selection of the (1987), Cofield, jury foreman under State v. cannot complain be heard to that his constitutional have been rights violated when the trial' court purposefully selects a black affirmatively foreman an effort to address the defendant’s allegation racial discrimination. To extent that the sec- (1989), ond State v. opinion, might indicate Cofield ruling a different result its must presiding judge foreman, all jurors consider grand selecting grand prospective only it is and thus not in this controlling case in which the indictment was returned in October *10 2d, Jury
Am Jur Grand