*1 IN THE SUPREME COURT v. ARTIS (1989)] [325 ROSCOE STATE OF NORTH CAROLINA No. 504A84 1989) (Filed 5 October (NCI4th)— (NCI3d); first degree § 1318 Jury § 6.1 Criminal Law 1. on bifurcated trial —jury selection —instruction murder in its discretion a murder The trial court did not abuse proffered by refusing to substitute prosecution jury instructions. jury preliminary pattern instructions for the instruction, pattern jury of the N.C.P.I. Crim. purpose 106.10, murder degree is to the bifurcated nature of first explain of issues jury’s trials and to limit the attention consideration trial; with the of the to instruct guilt phase concerned jurors sentencing process weighing in addition about the circumstances circumstances aggravating against mitigating fruitless, distracting, prejudicial. could be 2d, 555; Jury § Am 50. Jur Criminal Law (NCI3d)— Jury § dire —no im- degree 2. 6.3 first murder —voir questions balance in during jury
The trial court did not abuse its discretion degree prosecution allowing selection for a first murder in greater prosecution latitude to the than to the defense questions asked the venire. The record reflects no gross responses imbalance the trial court’s to defendant’s inquiries to those of the More opposed prosecution. notable is prosecution objected fact that more frequently. 2d, Jury § Am Jur 202. (NCI3d)— Jury § degree first selection- murder — private juror conversation between and court error —harmless
There prejudicial was no error selection during process of a first murder where degree prosecution juror when the responded any court asked whether had problems developed jurors, with the juror consequently chambers, invited to the court’s the trial court later conducted hearing presence an camera of counsel and the court of the in reporter, hearing record camera reflects the juror’s growing ability unease with her impose death penalty, juror was thereafter promptly properly *2 removed for cause. It is within the trial court’s discretion to reopen juror by examination of a previously accepted both parties and the juror’s removal the possibility obviated anything said to her privately the court infect the might jury as a whole. 2d, Jury §
Am Jur 198. (NCI3d)— 4. § Criminal Law 34.7 degree —prior first murder years offense —ten old prejudicial —admission not error There was no prejudicial error in a degree first murder prosecution by admitting testimony from a witness who de- scribed defendant’s conduct years toward her on a night ten before this trial where the earlier incident led to a conviction female, for assault on a a fact defendant’s counsel later raised on direct examination of defendant himself. Similarities be- tween the earlier attack and the murder in this support case the relevancy of the testimony, and whether years’ ten remoteness so erodes the commonalities between the two of- fenses that the probative value of the testimony is outweighed however, tendency its to prejudice is arguable; even assum- error, ing there was no reasonable possibility that a different result would have been reached had the error not been commit- 404(b). 8C-1, 15A-1443(a). ted. N.C.G.S. Rule N.C.G.S. § § 2d, Am Jur §§ Homicide 311. (NCI3d)— §
5. Criminal Law 34.7 degree first —prior murder offense —instructions prejudicial —no error
Defendant in a first degree murder prosecution failed to prejudice demonstrate plain error from the court’s instruc- tion that the jury could consider testimony or conduct ten years earlier leading to a conviction for assault on a female motive, to show intent and scienter. N.C.G.S. 15A-1443. § 2d, Am Jur §§ Homicide 311. (NCI4th)— §
6. Criminal Law degree first murder —prior prosecutor’s argument offense —
There was no error a first degree prosecution murder in the prosecutor’s closing argument concerning prior offense where the record prosecutor revealed that the took no liberties outside the wide latitude parties allowed in closing argument. 2d,
Am §§ Jur Homicide THE IN SUPREME COURT
STATE v. (NCI3d>— degree 7. Homicide 21.5 first murder —evidence of and deliberation —sufficient premeditation prosecution court did not err in a for first degree trial murder defendant’s motion to dismiss on denying based where premeditation insufficient evidence and deliberation testimony defendant’s own statements and the of a witness that defendant and the victim were amply arguing established death; her vehemently shortly before defendant admitted strik- wrist, her with ing bringing a stick as thick as his her to forcefully then her so ground, dragging spot another that she lost her shoes and her wig; telling admitted the victim to take her clothes off and that she complied out *3 fear; then her defendant hit on the head with the stick moved; body so hard that she no he her longer positioned her, in order to force intercourse with heard her labored only when it breathing, stopped “didn’t feel right” it him might occurred to that she be dying; medical evidence established that the victim died of manual in strangulation intercourse; the midst of sexual although defendant’s first state- ment did not indicate that it was his own hands that were hard,” the victim causing “breathing to be kind of there is ample only evidence from which the could infer not it; moreover, fact the specific but intent to kill that accompanied if these acts were not enough incontestably to prove a premeditated and deliberated then the killing, callous and acts calculating scattering dirt and leaves body, on the hiding jeans, the victim’s and going home to bed. rather than seeking help surely medical do. 2d,
Am § Jur Homicide 439. — (NCI3d)— 8. § Criminal Law 73 degree anonymous first murder letter —victim’s by statement heard —properly excluded
The trial court did err in not a first degree prose- murder by cution refusing anonymous to admit an letter received defendant’s sister which stated that defendant was respon- death, sible for the testimony by victim’s defendant that he say had heard the victim her mother that she was going get killed if “the people” ever caught up to her. Neither statement nor the letter fit within category excep-
IN THE SUPREME COURT 8C-1, hearsay rule under Rule tion to the N.C.G.S. 803 or § 804(b). Rule 2d, §§ Am Jur Homicide 330. (NCI3d)— I.Q. §
9.Criminal degree Law 169.3 first murder — —excluded, of defendant then admitted —no error There was no prejudicial degree error a first murder prosecution testimony from the exclusion of from a clinical I.Q. psychologist concerning the results of an test he had ad- ministered to defendant where the test belatedly fact admitted. 2d,
Am § Jur Criminal Law (NCI3d)— 10. Criminal Law 86.2 degree prior first murder — years offenses more than ten old —admission harmless error There was no prejudicial error for first prosecution degree erroneously murder from permitting the State to cross- examine defendant about convictions for assault on a female in 1957 and 1967. Specific facts and circumstances supporting probative value of the evidence were neither apparent court; however, from the record nor recounted the trial given evidentiary weight borne guilt alone, statement there is no possibility improper admission *4 convictions could have prejudiced way. defendant 15A-1443(b). 8C-1, Rule N.C.G.S. 609. N.C.G.S. § § 2d, § Am Jur Homicide 582. (NCI4th)—
11. § Criminal Law 821 degree first murder— instruc- tion on prior inconsistent statements —no error
The trial court did err in not a first murder degree prose- by cution applying its on charge prior inconsistent statements to two defense witnesses not prosecution but to two witnesses where the the clearly words of trial court’s charge revealed that, rather expressing than an the opinion regarding prior statements, the court admonished the jury to determine whether and, so, the they statements had been made if whether con- Moreover, testimony flicted with the presented at trial. the variations in the prosecution testimony by cited immaterial, were de minimus and and the court’s omission IN SUPREME COURT THE v. statements prior of inconsistent its examples of them from cited 15A-1232. proper. was N.C.G.S. § 2d, §§ 609. Witnesses Am Jur — (NCI3d)— murder —instructions degree § 25.2 first 12. Homicide deliberation premeditation murder degree in a first
There substantial by all the circumstances submitted supporting prosecution effected after jury killing the a indicating court to the trial deliberation. premeditation and 2d, § 501. Homicide Am Jur (NCI4th)— —mit- degree murder § 1360 first 13. Criminal Law —impaired capacity igating factors sentencing during phase did not err The trial court a prosecution submitting separate murder degree of a first instructing nonstatutory circumstance mitigating a mild mental retardation was whether defendant’s consider factor rather than mental retardation mitigating relating cir- statutory impaired capacity mitigating specifically I.Q. justify low can While bare evidence a cumstance. cir- nonstatutory mitigating of a worded properly submission cumstance, more an in- require it is not sufficient without impaired capacity this evidence to the relating struction 15A-2000(f)(6). statutory mitigating circumstance. N.C.G.S. § 2d, §§ Homicide Am Jur — (NCI4th)— degree Law first murder
14. Criminal history crime —not submitted sentencing significant —no sentencing portion did err during The trial court to instruct degree prosecution failing of a first murder statutory that defend- mitigating on circumstance activity where voir significant prior no criminal ant had prosecutor of defendant revealed dire examination Even defendant admitted past though number of convictions. trial jury, convictions before the court only two *5 convictions, defendant suf- plethora past was aware of the by of the court’s action because prejudice fered no virtue aggravating circumstance that defendant the found the felony involving convicted of a violence previously had been must taken into and all of the evidence be person, IN THE SUPREME COURT v. ARTIS court, by just account not the that which court has ruled 15A-2000(b); purposes. admissible other N.C.G.S. N.C.G.S. § 15A-2000(f)(l). § 2d, §§ Am Jur Homicide 514. (NCI4th)— §
15. Criminal degree Law first murder- heinous, sentencing especially or cruel aggravating atrocious — factor The trial court did not err during sentencing portion of a first degree murder prosecution submitting to the jury the aggravating circumstance that the especial- murder was heinous, where, ly atrocious cruel considered in the light State, most favorable sufficient to support a reasonable inference that the victim remained con- as, scious her during ordeal and suffered great physical pain already bloodied and from the bruised she was beatings, raped with sufficient violence to draw blood from her vagina and so strangled forcefully her repeatedly neck was scratched. A taking place murder during of a perpetration violent sexual unusually assault on the victim is humiliating and de- basing, and there was torture in psychological that the State’s evidence, viewed in its light, most favorable tended to show victim, immobilized several blows to head pinned to the ground weight, remained conscious defendant violated her sexually began process slow of choking the life out of her with his bare hands. 15A-2000(e)(9). N.C.G.S. § 2d,
Am §§ Jur Criminal Law 628. (NCI4th)— Criminal Law degree first murder- sentencing previous felony involving violence a —assaulting — female rape with intent
The trial court did err in not sentencing portion a first prosecution murder degree where defendant had been convicted assault on a with female intent to commit rape previous prosecution by charging that such a crime was felony involving use or threat of person. violence to the necessary It is to show that the use or threat violence felony; an element of a prior it is enough prior cite a felony in which the commission of the felony involved use or threat of violence. An assault on a woman with intent *6 COURT IN THE SUPREME ARTIS
STATE v. (1989)] [325 intent with the together violence exhibiting is an act rape is, such as violence and as act of subsequent to commit law, of the use or threat involving an offense a matter of person. to the violence 2d, § 513. Homicide
Am Jur (NCI4th)— murder- degree first § 1339 Law 17. Criminal — felony of factor consideration sentencing aggravating — felony murder underlying of sentencing portion err in a court did not The trial allowing prosecution murder degree a first felony underlying circumstance the an aggravating consider as felony murder where there am- conviction defendant’s of first murder degree the submission supporting ple found deliberation and premeditation based on and delibera- upon premeditation based both guilty felony murder. tion and 2d, 628. §§ Law
Am Jur Criminal (NCI4th)— murder- degree § 454 first 18. Criminal Law —no error prosecutor sentencing argument — sentencing portion err in the The trial court did not had where the victim been prosecution murder degree a first jurors tell the by allowing prosecutor strangled he in which wished pause a four-minute he would clock they could. Rhetoric long their breath as jurors to hold guilt phase accept- may improper prejudicially be sentencing phase. able 2d, §§ Homicide
Am Jur — (NCI4th)— degree first murder § 452 19. Criminal Law argument sentencing prosecutor’s — sentencing portion err in the trial court did not overruling prosecution first murder degree son, that defendant’s prosecutor’s argument objection provoke on the stand to put had been and aunt daughter permitted The State is to characterize jury’s sympathy. nonstatutory mitigating weight proffered to contest the circumstances. 2d, §§ Trial 296-299.
Am Jur IN THE SUPREME COURT (NCI4th)— § 442 degree 20. Criminal Law first murder— try sentencing jury urged sympathy case without — *7 in prosecutor’s remark the of a sentencing portion degree prosecution jury try first murder urging prejudice case without and without was not im- sympathy proper. supported by circumstances are to be Mitigating evidence, emotion; moreover, if it not was error for the trial court to exercise restraint in interrupting prosecutor’s argument, by this was rectified the court’s subsequent instructions. 2d,
Am §§ Jur Criminal Law 628. (NCI4th>— § 21. Criminal degree Law first murder —sen- tencing prosecutor’s by argument family victim’s — —loss
There was no plain sentencing portion error degree prosecution a first murder where the re- prosecutor family marked on the loss victim’s suffered her death. defendant, Given the overwhelming against including circúmstances, the supporting aggravating possible error 15A-1443(b). beyond was harmless a reasonable doubt. N.C.G.S.§ 2d, §§ Am Jur Trial 296-299. (NCI4th)— §
22. Criminal Law degree first murder- sentencing prosecutor’s comment —defendant’s lack of remorse —
There was no error a first murder degree prosecution in which defendant had testified he had not committed the crime where the prosecutor jury’s called the attention during his closing argument sentencing proceeding to demeanor, they defendant’s suggesting perceived man without signs visible of remorse. Remarks related to the de- meanor displayed throughout defendant the trial remain rooted in observable evidence and are not improper. 2d, §§
Am Jur Homicide 464. (NCI4th)— 23. Criminal Law 451 —sentencing— prose- murder cutor’s argument the master of his fate —defendant
The trial court did not abuse its discretion sentenc- during ing degree by denying objection a first murder to the prosecutor it stressing jurors they that was who were responsible they for the judgment would recom- mend, context, but defendant. Reviewed in the prosecutor’s IN THE COURT SUPREME respon- relieve the of its jury was not calculated to
comment that it defendant who sibility, jury to indicate to the but life was the master chose take the of another his own fate. 2d, §§ Am Jur Homicide (NCI4th)— sentencing— § 454 24. Criminal Law murder — community arguments jury as conscience of prosecutor’s — did during sentencing portion The trial court not err murder prosecution allowing prosecutor of a first degree community to consider to their urge responses objectionable to tell the recommendation. It is not sentencing community message that its verdict will send a may befall a convicted of murder a court person about what *8 its conscience justice of or to remind the that voice is the community. of the 2d, §§ 464. Jur Homicide
Am (NCI4th)— § 454 first murder- degree 25. Criminal Law error argument plain biblical —no sentencing prosecutor’s — statutory A and language of biblical prosecutor’s amalgam misguided when for the death arguing penalty, though was not so as to intervention misleading, improper require ex mero motu. 2d, §§ 464.
Am Jur Homicide (NCI4th)— § appropriate 26. Criminal Law 971 murder —motion for relief —no error denied for correctly court denied defendant’s motion
The trial the failure prosecution relief a murder based on appropriate pages the second of two prosecutor of disclose one-paragraph which report, medical examiner’s contained victim’s death. summary surrounding of the circumstances as there summary was not material insofar paragraph defense no that its probability reasonable disclosure of defendant’s trial to be would caused outcome have different. 2d, § 291.
Am Criminal Law Jur
STATE v. (NCI3d); § 1325 Criminal Law § 27. Law Constitutional — — (NCI4th)— unanimity murder issues preservation constitutionality of penalty death mitigating factors — constitutional penalty Carolina’s death statute is North factors must be found requirement mitigating violate the unanimously to exist in case does not capital S. Amendment to the U. Constitution. Eighth 2d, § Am Jur Homicide 548. (NCI4th)- (NCI3d); 6, 7.11,
28. 7.14 Law 1306 Jury §§ Criminal — selection of preservation issues murder — prose- court err in a first murder degree The trial did not motion for voir dire denying cution individual excusal for sequestration jurors, permitting they jurors who indicated that would be unable cause circumstances, regardless recommend a sentence of death no of defendant’s and there was substantiation record challenges used prosecutor peremptory contention Moreover, the death jurors penalty. to remove hesitant about use to strike improper peremptory challenges it is not questions imposing who have some about veniremen voiced (cid:127) the death penalty. 2d, § 466. Am Jur Homicide (NCI4th)— §§ preservation Law Criminal murder — proof sentencing duty on —instructions—burden issues — *9 penalty death impose due of law because process
Defendant is not deprived by mitigating the burden a circumstance proving he bears evidence, instruc- court’s of the and trial preponderance duty to jury’s impose on the prosecution in a murder tion constitutionally circumstances was penalty the death certain sound. 598, 599; 2d, §§ 514. §§ Homicide
Am Jur Criminal Law (NCI4th)— —death degree § 1373 first murder 30. Criminal Law disproportionate sentence —not pros- murder in a first degree
There was no indication under the was imposed of death ecution that sentence arbitrary imper- or other prejudice of passion, influence factor, within not disproportionate and the sentence was missible
STATE v. 15A-2000(d)(2) meaning N.C.G.S. where the evidence vicious, lust-driven, depicted crime dehumanizing perpetrated by history a defendant with a of violent conduct toward teen- after he aged girls; rendered the victim helpless striking wrist, her repeatedly with a stick as thick as his defendant his wrapped slowly hands around her throat and her choked her; violently life out of her as he raped the attack was brutal relentless; and displayed defendant no remorse or contri- tion for his act and attempted body to conceal the before casually home for a strolling nap. 2d,
Am §§ Jur Criminal Law 628. Justice Chief EXUM dissenting.
Justice FRYE dissenting only. as to sentencing phase by defendant from judgment him to death Appeal sentencing for conviction of murder first said degree, judgment imposed J., Court, by Pope, at the 20 August session of Superior County. May Heard in the Supreme Court ROBESON General, Lacy H. H. Thornburg, Attorney Byers, Joan Special General, Graves, Deputy Attorney and Debra C. Associate Attorney General, the state. Hunter, Jr., Defender,
Malcolm Ray Appellate by Gordon Widenhouse, Defender, Assistant Appellate for defendant.
MARTIN, Justice. Defendant was convicted of murder the first degree Joann Brockman and sentenced to death. review guilt Our penalty phases of his prejudicial trial reveals no error.
Evidence adduced both defendant and the state at defend- ant’s trial tended the following to show events in Red occurring Springs on October 1983: a.m., aunt, day
On that at about 9:30 the victim’s Alice observed McLaughlin, walking up the road towards Joann’s home. Mrs. McLaughlin watched defendant knock on Joann’s door later, subsequently enter. About an hour Mrs. McLaughlin saw defendant and Joann leave the latter’s house and walk past *10 .her own house in the direction shopping Shortly of a center. thereafter, brother, McKinnon, McLaughlin Mrs. saw her Curtis
STATE v. tracing same route towards the shopping center. He testified Joann, that he walked past defendant and sitting who were under tree, Mr. pear arguing. McKinnon testified he ran into his brother-in-law, Johnny Haywood, center. shopping Mr. Haywood drove back towards the tree pear around 11:30 but saw Shortly house, one. no after she saw McKinnon walk her past Mrs. McLaughlin heard Joann call “help” three times. But because lot, she had known Joann “cut the fool” a Mrs. McLaughlin not did respond to cries. later,
Sometime Mrs. saw McLaughlin walking defendant back towards He Joann’s house. to ask stopped McLaughlin Mrs. if she seen had Joann. She answered that last she time had seen her niece was she when was with defendant. Defendant continued door, towards Joann’s house and approached the but neither knocked nor entered. He turned way around and headed back the he had McKinnon, come. Mr. who had by way now returned home tree, the pear where he anyone, had neither seen nor heard also witnessed defendant’s approach and from departure Joann’s door. fiance, Moore,
Joann’s David returned from around work 3:00 He p.m. was concerned about Joann’s absence and went looking her with Curtis McKinnon. The two found wig Joann’s and near buildings shoes some from the pear They far tree. called mother Joann’s and contacted the police report that Joann was missing. mother,
In early evening, Haywood, Joann’s Johnny and Sheriff Deputy McLean searched the area tree near the and pear eventually body came Joann’s upon partially covered with dirt brush. Except up and for a sweater bra pushed and above her breasts, body Joann’s was naked. There was on her blood nose mouth, sweater, her film on and a of blood her on hands.
An autopsy revealed that there although large was a bruise forehead, on Joann’s this had not resulted in a skull fracture nor neck, it been had fatal. Abrasions on her hemorrhaging connective tissue around the windpipe, lungs full fluid in- dicated that the cause of death been asphyxia had due manual addition, dilated, strangulation. In vagina consistent with during Joann’s died having sexual intercourse. trial,
At three state offered statements made night early morning discovery following *11 IN THE SUPREME COURT v. (1989)]
[325 statements, these which had been body. The first of of Joann’s signing read Miranda and being warnings preceded form, testified exculpatory. Defendant later was rights a waiver of statements, inculpatory and subsequent, he not made the had he their truth. denied 10:00 In p.m. at around first statement transcribed he come back to his sister’s
this statement defendant said had He spree an in South had all-night house at dawn from Carolina. a.m., 8:30, up 6:00 walked at awakened at and gone sleep boyfriend her 9:00 a.m. At the store with his sister and around all, pitching 9:30 he and drank it bought peppermint schnapps some (The field store. officers’ search grocery the bottle into a behind fruitless.) had then to Joann’s for the house, Defendant walked proved bottle way, her had found the door chained. aunt on but meeting entered, He but turned around and walked neither knocked nor house, p.m., where he from till 4:00 slept back to his sister’s 10:30 up. when the came him police picked and midnight near blood questioned again regarding Defendant was This, said, was blood. He initially on his shirt. chicken it to officers for then admitted that was testing, offered his shirt blood, they He where not chicken but Joann’s. told officers could accompany find Joann’s and officers to scene pants agreed where he been with her. He indicated how she had been had last her, exactly position left which with the lying when he coincided afternoon, body pants her when her found located under a of tin where he left them. When defendant piece had police returned station approximately with officers at a.m., more, 1:00 was interviewed once resulting following he statement, inculpatory completed of which was transcription by 3:00 a.m.: a.m., 9:30 Springs
I went to the store in Red about liquor I walking. bought pint Peppermint Schnapps 10-22-83.1was I liquor $3.45 from the dude store. walked black Store I drank two
over Food Lion about thirds behind my I took the rest of the and stuck it belt. pint. liquor that, down the dirt after towards Joanne’s I walked road Brockman, something like house. I think her last name is her went aunt’s house. I saw aunt that. I first Joanne’s if yard. I hollered asked her aunt Joanne standing N.C. 278 know, was home. Her aunt said she didn’t that Joanne had gone out but she didn’t know if she had come home or not.
I went to Joanne’s house and knocked on the door. Joanne in, came to the door. Joanne had told me to come long time *12 no see. We sit down and started talking. Joanne wanted a drink of that I liquor had. Joanne drank the rest liquor said, that I had. Joanne “I you want my to be main man.” I have been messing around with Joanne for some time.
Joanne wanted me to go outside and some get old shingles to burn on the fire. I went outside and an old got tire and it put on the fire. I asked Joanne if we were going to do anything. Joanne asked me if I wanted I yeah. to and told her I got bed and I had sex with Joanne. Joanne got up afterwards and she took a bath. that, dollars,
After Joanne asked me to her give ten because there was some stuff at the store she wanted. I gave Joanne a ten-dollar bill and she put it in her bra. that, house,
After me and Joanne left the walking towards the store. We walked passed her aunt’s house on the [sic] way. We were and talking Joanne said something about this man she was in seeing I Lumberton. asked Joanne who he was and she told me it my weren’t none of business. I told said, “Yeah, her I give my money. had her She you and going give me some your money.” more of Joanne called me a mad, few words and she made me I because was pretty high the time. I grabbed Joanne the arm and told her to let’s go barn, road, over there near the on the right side of the and her, sit down and talk. I wanted to I whip but didn’t want said, to hurt her. Joanne “I going you.” ain’t no damn where with I grabbed Joanne her arm and her drug over to the back of the barn to the corner. We sit down at the back of the barn and we talked a while. Joanne talking started guy about again, Lumberton and it me made mad. Joanne said she was out with him going tonight. We stood and I up reached down on the ground picked up big a stick and I hit her side of the head. The stick was about big my around as wrist. stick was three about or four feet long. THE SUPREME COURT IN v. N.C. 278 her, I love her. I Joanne grabbed said didn’t
After I hit she her over her. to take going I was the arm and snatched again. pulling her Joanne was where was found and beat she me, she wig her. She lost a and I was away dragging from over to where she drug I Joanne on and her shoes. had at, my hand. I still had the stick found the man arguing were about When me Joanne road, Lumberton, and told something she took out on the dirt knife or I know if it was a my cut ass. don’t me she would because file. I take Joanne be serious fingernail didn’t a that, I never did me. After I she would cut didn’t believe knife had the again. file Joanne fingernail the knife or see small, with shoulder bag inside round black finger file strap. found, where she was I asked drug
When I Joanne over to me if me a little bit. She told going give her no, she was *13 I guy it that in Lumberton. give she was to going hit her in the head real mad I took the stick and and got Joanne, her side. I hit she fell to the on ground hard. When me some. Joanne again going give I if she was asked Joanne side, her left laying no Joanne was still on again. said I with left of her. hit Joanne standing again I was that, I hit After Joanne didn’t pretty stick and her hard. any move more. her, I told place hit I took
Before I her at second I took them off guess her clothes off. she to take Joanne wearing me. jeans was scared of Joanne was because she sweater, a but wearing off. She was white she took them if it off not. She didn’t have I don’t know she took on. panties stick, she was I time with the
After hit Joanne last dropped on her back. I I turned her over still on side. laying her my my penis put I took my down around knees. pants Joanne, I sex with Joanne legs. between her had it inside I I didn’t right, got up. five I didn’t feel so for about minutes. of her. come inside or outside last since I hit her the anything had not said Joanne time, my I pulled pants was kind of hard. breathing and she I couple Joanne a thought dying. I Joanne called up. back STATE v. N.C. 278 my
of times after I pulled pants up, say but she wouldn’t anything.
I I away, took the stick had and threw it toward the house, that, old white looking bushes. After I tried her, to cover Joanne I threw up. leaves and dirt on top that, I put but didn’t that much on her. After I took her tin, hid them jeans and under a piece back towards hold barn. That is the same I pair jeans showed to you and Detective Garth Locklear piece under the of tin.
After I hid the I jeans, my walked to house and went to bed and went to I sleep. up woke about after something stayed 4:00.1 there at the house until James McLean came there. third, completed Defendant briefer statement at 3:10 a.m. Brockman, in which he admitted that he had killed Joann he had been advised of and understood his rights, and that he voluntarily had assisted officers in finding body Joann’s and pants. statements, Despite these testified that he had not statement, volunteered either inculpatory that the explaining of- ficers had answered their own questions and that his signatures on the waiver of form rights and on the 3:00 a.m. statement had been affixed to papers blank or to for his receipts clothes. statement, testimony,
Defendant’s like his first was exculpatory. He related that after buying pint peppermint shortly schnapps a.m., after 9:00 he gone had to Joann’s house. Another man was already there sitting on the foot of the While bed. defendant went fire, fuel up find and made the other left. man Defendant Joann, he testified that had then had intercourse with that he *14 had her fifteen dollars and left. She given followed him and walked with him to a where barn she to fix her clothes. stopped Defendant came around the barn to find her in partial undress. He laid her pants piece under a of tin at her request. When he stood up, his head was he He spinning and saw faces. took a and swing accident, her, by hit Joann her causing nose to bleed. He hugged leave, he apologized, prepared and as he was hit in the back one, by someone from behind. He turned around but saw no then Joann, ran the direction of the road. When he looked back at she walking from the tree pear towards barn. His head spinning again, defendant walked to the store and eventual- grocery ly found himself at his sister’s house. Defendant testified that he v. ARTIS but that schnapps drugged, of had been swig his last
was certain how, what, by this had occurred. with nor whom he knew neither guilty that it could find defendant The was instructed jury felony either the on the basis of degree in the first of murder deliberation, both; malieej and or premeditation, murder rule or malice, without on the basis of degree murder in the second guilty deliberation; returned jury guilty. and or premeditation on both bases degree murder in the first guilty verdict of a and, sentence of hearing, recommended a sentencing following death.
Guilt Phase jury to and [1] Defendant first contends instructions throughout jury selection to substitute for the preliminary that the trial court’s pattern jury refusal prior instructions, proffered 106.10, to select opportunity him of the deprived N.C.P.I. Crim. fair, jury selection during On two occasions impartial jury. in a case jurors capital that charged the trial court process, they deter that in the first must two proceedings, there are charged of the offense only guilty mine whether the defendant admonished the The trial court lesser included offenses. of the trial was to only part concern in the first that its jury sentencing proceeding, that the guilt, question resolve convicted, use another might if the defendant was which would follow jury instructions. preceded separate would be jury and more that the trial court instruct requested Defendant trial, capital including of a procedures specifically regarding proved circumstances must be aggravating explanation an doubt, that circumstances beyond mitigating a reasonable the state defendant, circumstances aggravating and that the may be shown to determine circumstances against mitigating weighed must be substantial, sufficiently beyond a reasonable were whether the former doubt, penalty. death impose error for the trial court now contends it was
Defendant were his instructions reasoning proffered request, refuse this two because of impartial selection of an critical because by the prosecutor of the law made misstatements ability his to consider his mind about juror changed at least one based, surmises, im- upon penalty death imposing Defendant that the members suggests information. perfect *15 IN THE SUPREME 295 COURT venire were compelled to consider their attitudes towards the death penalty in a vacuum —without sentencing pro- information as to accurately cedures that would enable them to answer inquiries result, contends, about those attitudes. As a those jurors might who hesitate before imposing a sentence of death were those who, in their of the ignorance process, sentencing expressed misgiv- who, ings ability about their impose penalty death reason, were excused argues for cause. He that this produced jury uncommonly “a to condemn in willing a man to die” violation of defendant’s constitutional to a right impartial jury. fair and Illinois, 776, 784, v. Witherspoon U.S. 20 L.Ed.2d (1968). denied, reh’g 393 U.S. L.Ed.2d instruction, purpose pattern jury N.C.P.I. Crim. 106.10, explain is to the bifurcated first-degree nature of murder jury’s trials and to limit the attention to consideration of issues Harris, concerned with the guilt phase of the trial. State v. (1988). addition, jurors, 371 S.E.2d To instruct process about the sentencing weighing aggravating circumstances against mitigating circumstances would have invited the following fruitless, it dangers: might jury always be as the is not sentencing of the same individuals composed guilt-phase jury; as the it might distracting, jury be function of during guilt phase defendant, is to determine the or innocence of the guilt not to be concerned about his and it could have a penalty; prejudicial effect, jury the second suggesting stage trial reached, assuredly will be presupposing guilt. Furthermore, judge supervis trial has broad discretion jury selection to the end that both the state and the defendant ing Nelson, v. may receive a fair trial. State Carolina, nom., cert. denied sub Jolly North (1980).
U.S.
Ironically, although prosecutor the sentencing procedure, of the to the mechanics as substantially paralleling potential juror of one question asked a to give. the trial court requested had the instruction defendant responded the trial court objected, and question this defendant To instruction, reminding jury pattern reiteration of the with a brief in the guilt-innocence responsibility of its more focused jury the accurate Although error. defendant the trial. This was not phase of incorrectly prosecutor in which the ly notes two other instances law, that an im example, one indicating point, stated might circumstances “man mitigating over aggravating balance to these object defendant failed penalty, the death date” misstatements, so constitutes waiver of such and his failure to do 326, Oliver, v. N.C. error on State appeal. (1983).Moreover, inquiries extent of counsels’ the form and is within the sound discretion jurors examination of voir dire 343, Johnson, 346 SE.2d 596 v. 317 N.C. court. State the trial (1986). permitting that discretion in We no abuse of perceive ordinarily counsel in voir dire wide latitude accorded state the Id. jurors. examination of
[2] Defendant also contends
that the
selected was
slanted
of the trial court’s
only
because
penalty
in favor of
death
instruction,
with
proffered
the venire
charge
refusal to
prosecutor
the court
questions
permitted
but also because of
allowing
questions
the venire without
similar latitude
to ask
un
contending,
In so
by defendant’s counsel.
posed
discretionary
of the trial
power
“seeks to invade the
justifiably
State
duty
and control the course of
trial.”
supervise
judge’s
(1984).
587,
Adcock,
593-94
The record
v.
310 N.C.
to defend
responses
in the trial court’s
gross
reflects no
imbalance
of the
More notable
opposed
prosecutor.
to those
inquiries
ant’s
more
to defend
objected
frequently
that the prosecutor
is the fact
bench,
from the
whereas defendant
drawing rulings
inquiries,
ant’s
to alert the trial court
object, failing
fewer
opportunities
seized
Black, 308
complains.
which he now
See
to errors of
the broad
there was no abuse of
Again,
Although defendant
to
the
object
hearing,
failed
at
excepting
only to the ultimate removal of the juror
panel,
from the
this
Court
held
has
that the
an
right
every
of
accused to be
present
stage of his trial upon an
charging
indictment
him with a capital
Moore,
198,
felony is not waivable. State v.
275
166
N.C.
S.E.2d
(1969).
652
clearly
It is
error for
trial
the
court to communicate with
defendant, counsel,
a juror in chambers and in the absence
of
138,
However,
or
reporter. Payne,
a court
320 N.C.
and service
within the
are
broad discretion
the trial court and
appeal
showing
are
reviewable on
absent a
McLaughlin,
abuse of discretion or
error. State v.
legal
(1988).
N.C.
from Billie [4] defendant’s conduct towards Defendant Ann next Woods, assigns who was called error to the admission her the night by the of 13 December state to describe testimony a conviction nearly years before this trial. This incident led to ten female, counsel fact that defendant’s own later for assault on a By so doing of defendant himself. raised on direct examination about the admission of complain defendant cannot be heard leading to that conviction. testimony the events recounting We elect Wright, See error assigned the merits of the because appraise nonetheless to scrupulously death order practice of our review cases *18 affirmatively afforded proper safeguards that all have been show McKoy, S.E.2d the defendant. State — (1989). —, 103 granted, cert. U.S. L.Ed.2d testimony The of Ms. prefaced trial court bulk Woods’ testimony that the witness’ was to warning jury. with a motive, only for of purpose showing be received and considered intent, part and scienter on the of defendant.
Ms. that at the time of the incident she was Woods testified years way She that her parents’ sixteen old. related on from defendant, by the store she was that apartment approached to by her from and her she was grabbed he behind arm told “No, to him. I ain’t.” De- responded, the woods” with She “going insisted, some,” fendant “You’re me and threw her going give throat, her, her put onto the straddled his hands around ground, say- Woods started choking and started her. Ms. testified that she her, will, “I go,” saying, I’ll but defendant continued choke ing “No, breathe, you, I’m to kill now.” As as she could just going long recounted, accompany Ms. told defendant she would Woods she woods, he him to the believe her to be sincere hoping would continued, however, let she started go choking and of her. and Fortuitously, to lose her and was she was dying. breath convinced N.C. 278 defendant, by spoke a friend of her sister’s walked prompting Woods, say him jump up you, to Ms. with wrong “What’s store, girl, you crazy?” are As she ran towards the Ms. Woods her, yell heard defendant after me my money “Give She back!” testified that she had or night any other time received money from defendant. prior
Evidence of aby offenses is “inadmissible on the issue only relevancy of if its guilt is to show the character of the his disposition accused or to commit an offense of the nature of one State v. charged.” Young, (1986). 404(b). 626, 635 This rule is codified as Evid. N.C.R. Such admissible, however, evidence is if it prove tends to other fact, motive, intent, proof opportunity, relevant tion, “such as prepara- mistake, identity, plan, knowledge, entrapment absence of 404(b)(1988). 8C-1, or accident.” N.C.G.S. Rule The exception is grounded in the logic sequence from the inferring of events comprising an offense or from its particular features that same once, person committed offense more than aware on least the latter occasion of its When the consequences. state seeks to defendant, introduce evidence of sex prior, similar offenses markedly this Court has been in admitting liberal such evidence 404(b). Cotton, for the purposes cited in Rule 404(b) The use permitted guided under Rule similarity temporal two constraints: When the proximity. features earlier act are dissimilar from those of the offense which currently with the defendant is such evidence lacks charged, probative When value. otherwise similar offenses are distanced time, stretches of significant striking, commonalities become less probative and the value analogy attaches less to acts than to character of the actor. *19 of by point
Evidence other crimes must be connected of time and commonality, proof circumstance. this of Through However, may reasonably prove one act a passage second. the slowly of time between the of commission the two acts erodes commonality . between them. . . of Admission other crimes point at that allows the to convict defendant because is, person of kind of he rather than because the evidence discloses, doubt, beyond a he committed the reasonable that offense charged. THE COURT IN SUPREME (1988). Jones, At- 369 S.E.2d time, offenses at- prior of evidence of by pertinence tenuated for than to offense to the defendant’s character rather
taches words, tends In remoteness time he trial. other which is on the evidence and enhance its value of probative to diminish the tendency prejudice. to years before his trial on Woods ten
Defendant’s attack Ms. by ap- characterized an Brockman was for the murder Joann strangulation, manual the initiation of parent attempted rape, to kill Woods. Medical evidence stated intent Ms. defendant’s by and killed raped Brockman had been that Joann established relevancy These support similarities strangulation. manual offense. testimony prior Woods’ as to the Ms. years’ erodes the commonalities
Whether ten remoteness so probative value of Ms. Woods’ between the two offenses that by testimony tendency prejudice arguable. its to is outweighed is testimony, it was error to admit Assuming deciding without that, had the error not been possibility there is no reasonable committed, reached defend- different result would have been at a 15A-1443(a)(1988).Defendant’s statement ant’s trial! N.C.G.S. § stick, her, felling hit with and that police officers that he Joann her was breathing he with while her labored had intercourse overwhelming evidence of longer moving she was no is although testimony Any impact of Ms. Woods’ concern- prejudicial his guilt. her upon would have attempt similar assault ing own damning nature of defendant’s wholly eclipsed been words.
[5] Defendant also takes issue with that portion trial court’s that Billie Ann charged instructions which the final motive testimony be considered to show defendant’s Woods’ could murder, Brockman, his intent commit that the murder Joann on her. of his attack regarding consequences and his scienter error, alleged this Court’s object defendant failed to Because analysis, whereby the burden error” guided “plain review imposed show is even than that prejudice greater on defendant to Walker, 15A-1443.State N.C.G.S. § arguendo, error defendant’s failure Again, assuming that, testimony Ms. Woods’ possibility a reasonable had show admitted, have reached at his a different result would been been
IN THE SUPREME COURT
STATE v. N.C. fortiori, implies, trial a that he failed to bear even heavier burden imposed the test for error. plain [6] Defendant also assigns error trial court’s failure to sustain his objections portions of the prosecutor’s closing argu that, testimony. ment Ms. concerning Woods’ Defendant contends motive, despite prosecutor’s repeated in emphasis on similar tent, and modus in operandi exhibited the assault on Ms. Woods the evidence concerning circumstances of Joann death, Brockman’s the “tenor” of the prosecutor’s argument sug gested an emphasis on character.
We decline defendant’s invitation to read between the lines
of the prosecutor’s
and so to
argument
indulge
speculative analysis
stylistic
of its
scrutiny
subtleties. Our
of the passages to which
objected
reveals no such excesses as
facts
arguing
in evidence or uttering remarks
prejudice
calculated to mislead or
See,
Monk,
the jury.
e.g., State
S.E.2d 125
(1975). The record reveals that
the prosecutor
took no liberties
falling improperly outside the wide latitude
parties
allowed
clos-
(1980).
ing argument. State v.
Lynch,
[7] Defendant next asserts
it was
error
trial court
deny his motion to dismiss the
of murder in the
charge
degree
first
because the evidence was insufficient to
a
prove
premeditated and
dismiss,
deliberate
In
killing.
on a motion
ruling
both the trial
court and the
court must
reviewing
consider the evidence in the
state,
light most
favorable to
and the state
every
is entitled to
Bullard,
reasonable inference to be drawn from the evidence. State v.
(1984);
S.E.2d 370
State v. Stephens, 244 N.C.
(1956).
380,
[325 premedita- first degree upon In of murder in the based the case deliberation, evidence before there must be substantial tion and the it that defendant killed from which could determine the malice, deliberation. Id. Premedita- premeditation, his victim with and ordinarily proved by must be circumstantial tion and deliberation victim, evidence, the provocation of the such as absence will ill killing, before and after conduct of parties, killing between the or evidence that other difficulties Bullard, 129, 322 S.E.2d was done in a brutal manner. argues Defendant that no such circumstantial of existed, he suggesting “simply and that premeditation deliberation violently during activity of sexual in a sudden passions acted 1) of tenders that: Joann’s viewpoint turn events.” Defendant will, of ill calling help was insufficient circumstantial evidence testimony regarding McKinnon’s defendant’s and Joann’s and Curtis 2) the prove argument feeling; raised voices did not or bad force excessive, used, lethal, it somehow grossly being while was pursuant less brutal to die the act intercourse than during 3) scheme; while being strangled engaged some other murderous 4) premeditation; does deliberation is intercourse not establish intercourse, if is lacking passion- the victim killed midst of 5) event; ability nor the to reflect opportunity filled and neither under the circumstances of this amorous present or deliberate encounter. of the evidence its perception
Defendant’s strains facts. testimony defendant’s own statements and Curtis Together, Joann McKinnon the fact that defendant and amply established shortly vehemently were before her death. Defendant ad- arguing her stick thick as his wrist striking bringing mitted with a forcefully spot her to the then her so to another ground, dragging that wig. she her her Defendant admitted he that lost shoes and off that she out of complied told Joann to take her clothes and her stick fear. He he hit in the head with the so admitted then body He her order longer positioned hard that she no moved. her, breathing, her labored and to force intercourse with heard it to him only when it feel occurred stopped right,” “didn’t evidence established that Joann died dying. that she was Medical Although manual in the midst of sexual intercourse. strangulation his own did not indicate that it was defendant’s first statement hard,” “breathing kind of hands were Joann be causing that only infer not which the could ample there evidence from the specific fact but intent to kill If accompanied it. brutality these acts of were circumstantially not enough tending prove a premeditated killing, and deliberate then defendant’s callous and acts of calculating scattering dirt and leaves on Joann’s body, hiding jeans, Joann’s and of going home to bed rather assistance, than seeking surely medical do. This other substan- tial evidence was the jury before the elements of murder showing murder, in the first and that degree defendant committed that emphatically trial court did not err in denying defendant’s motion to dismiss underlying charge.
[8] *22 Defendant next contends that after a voir dire the trial court erred in refusing documentary to admit certain and testimonial evidence. This by included a letter received defendant’s sister and testimony by defendant that when he first met Joann Brockman May say he heard her her mother to that she was going get to killed if “the ever people” caught up testimony with her. This uncorroborated, aunt, who, was by by either Joann’s mother or her defendant, according to was when present the remark was made. The testimony trial court disallowed this as irrelevant. con tents of the letter were not admitted into evidence. The letter was preserved sealed and of this purposes appeal.
Evidence having “any tendency any to make the existence of fact that is of consequence to determination of the action more or probable probable less than it would be without the evidence” McElrath, is considered relevant. State v. 322 (1988).
442,
(1988);
8C-1,
However,
hearsay
N.C.G.S.
Rule 401
§
evidence,
relevant,
even if
is inadmissible unless it is covered
8C-1,
statutory exception, see
N.C.G.S.
Rule
or unless
§
its exclusion deprives a defendant of “a trial
fun
accord with
Barts,
damental standards of
process.”
due
(1987).
362 S.E.2d
anonymous
The letter’s
author stated that defendant was not
death,
responsible for Joann Brockman’s
but that her death had
been
result of a “contract”
on her life
being placed
because
she had not paid
$5.00
declarant a
debt. Both the victim’s statement
to her mother and the letter
received
defendant’s sister were
hearsay,
offered
a
other than the
to
person
prove
declarant
wit,
the truth of the matter asserted —to
that it was not defendant
8C-1,
but another who killed Joann Brockman.
Rule
N.C.G.S. §
Neither the
any category
statement nor
letter fits into
COURT
IN THE SUPREME
v. ARTIS
804(b).
Although
Rule
Rule 803 or
under
exception
the Rule
under
May remark is admissible
suggests that Joann’s
mind, emotion,
803(3)
sensa-
existing state
as a “then
exception
remark,
uttered,
condition,”
tion,
plainly
is
if
such a
physical
or
believed,” which
. .
the fact .
prove
of . . . belief
a “statement
Furthermore, five
Id.
exception.
specifically excluded from
is
significantly
her
erodes
the time of
death
remoteness from
months’
state of mind.
concerning
remark
the declarant’s
the relevance of
exception
of Rule 804.
not come within
The letter does
within the
anonymous letter does not come
The writer of the
There is
“unavailable as a witness.”
statutory
being
definition of
writer
finding
support
in the record
no evidence
(“declarant”)
testify;
refused to
exempted
testifying; or
was
from
mentally
or
memory;
physically
or was dead or
or
a lack of
had
and defendant
testify;
hearing
or
absent from the
unable
testimony by process
procure
was unable to
his attendance
804(a) (1988).
8C-1, Rule
N.C.G.S.
or other reasonable means.
unknown,
and therefore there
This is true because the writer
availability
The defend-
or her
as witness.
is no evidence as
ant,
his
evidence,
of satisfying
bears
burden
proponent
unavailability
See State v.
under the rule.
requirements
denied,
disc. rev.
Highsmith,
App.
*23
(1985).
119,
314
IN SUPREME COURT THE v. ARTIS the declarant that requires in North also The rule Carolina his statement. potential of damaging must have understood (1978). Here, it 249 S.E.2d Haywood, anonymity actually that believed the declarant plain is liability. This criminal him or her from the statement shielded of I “. . . can not statement: by this from the excerpt is evidenced Thus, me . . .” up if will mess . no and I do it leave name fulfilled, not been hearsay exception has of requirement reason. is for this the statement inadmissible admissible may be otherwise Even a written statement though interest, it admitted as evidence cannot be against as a declaration Caudill, FCX, Inc. v. properly it authenticated. until has been (1987); also Guynn Corpus see App. 1979)(telexes (Tex. Trust, Civ. App. Bank and 589 S.W.2d Christi authenticated, against not admissible as declaration were not so interest). Here, properly showing there is no letter authenticated, indeed, long could not be so declarant a declaration remained unknown. To authenticate a document as interest, who executed person it shown that the must be against (Chad- Evidence Wigmore, was the alleged 1974). it declarant. authentication, the letter cannot rev. Without proper bourn admitted under Rule 804. be letter, theoretically expose its tending
This a statement unless anonymous liability, criminal admissible declarant to clearly its trustworthiness. indicate corroborating circumstances 804(b)(3)(1988). include, 8C-1, Rule Such indicia must N.C.G.S. § actually personal example, potential jeopardizing “the liberty of the time was made and declarant’s the declarant at it [the statement,” evidence of his comprehending] damaging potential voluntariness, surrounding the com- and circumstances “facts . . . cor- crime and the of the declaration making mission indicatpng] the probability the declaration and roboratpng] 709, 730, 249 S.E.2d Haywood, trustworthiness.” State v. 429, 442 These absent. are *24 May only occurred defend-
Mention of the victim’s remark similarly testimony. The letter stands isolated from other ant’s Only the letter might vouch for its trustworthiness. versa. Such bootstrapping tends to the remark vice corroborate an of the trustworthiness adequate guarantee does not provide either Without some other nonhear- piece independent, of evidence. '
STATE v. say indication of the trustworthiness of either the remark or the letter, each was barred properly hearsay. as inadmissible The trial court’s proper application hearsay rule bore no affront Barts, justice” “ends of under these circumstances. Cf. 170, 180, 240 (quoting Chambers v. Mississippi, (1973)). 410 U.S. 35 L.Ed.2d psychologist [9] Defendant concerning complains results of an addition that the I.Q. test testimony he had administered of a clinical excluded, to defendant was erroneously although testimony belatedly was in fact admitted. The objective of introducing this testimony was “to show that as is talked to and he [defendant] responses makes he questioned, that his intellectual capacity [as] would need to be considered to gauge responses by.” his Defendant I.Q. explains on appeal that evidence as to his would have affected jury’s understanding responses his to interrogation leading Further, to his inculpatory statements. he such urges, testimony Shank, was admissible under as evidence relevant to the jury’s determination of whether defendant was capable premeditation and deliberation.
Although psychologist’s testimony was excluded when first proffered, it was admitted in entirety its subsequent to defendant’s own testimony. Under such circumstances defendant’s assignment of error is baseless. Even if it initially had been error to exclude the psychiatrist’s testimony, this was subsequently cured its admission, and defendant makes no argument that he was in the 15A-1443(a) (1988). least prejudiced by the delay. See N.C.G.S. § [10] Defendant’s next assignments of error concern the interpreta tion application of North Carolina Rule of Evidence which governs the use of evidence of a criminal conviction for purposes alia, of impeachment. The rule provides, inter that evidence that the witness has been convicted of a crime punishable by more sixty days than confinement is admissible for purposes of attacking his credibility unless period of more years than ten has elapsed since the date of the conviction or release from incarceration whichever occurs later. The use of evidence of convictions of more years than ten determines, is permitted, only but when “the court in the interests of justice, that the probative value of the conviction supported by specific facts and substantially circumstances outweighs 609(b)(1988). 8C-1, its prejudicial effect.” N.C.G.S. Rule analysis An 609(b) of the legislative history behind the identical Federal Rule
IN THE SUPREME COURT v. ARTIS (1989)] N.C. [325 prior that con- upon presumption reveals that it rests a rebuttable years prejudicial ten old tend to be more victions more than general than of his character probative a defendant’s defense truthfulness, into they that should therefore not be admitted and 465, Blankenship, App. S.E.2d evidence. State (1988). When on cross-examination about the state asked defendant with and of on a female intent having been tried convicted assault 1957, in the trial dismissed the and rape to commit court analyzed ex motu. a hearing mero The court number conducted a by period time a the found, of defendant’s trial antedating of convictions Evid. years with Rule exceeding ten and accord N.C.R. 609(b),1 in- the state had notified defendant its properly The court disal- tent to cross-examine him about these offenses. larceny escape and an regarding lowed cross-examination but, permit- of Rule it language its conclusion expressing two questions with other proceed concerning ted state to convictions:
I on a female with intent commit do find that assault female, on a sufficient and the assault have rape circumstances, connection, outweigh facts supported any prejudicial effect. the state to cross-examine consequently permitted
The trial court assaults, well regarding these two dated as regarding more convictions. a number of recent convictions court’s determination that defendant’s trial assault on a with intent
for assault on a female and female was erroneous. facts and Specific commit were admissible rape are probative value of this evidence supporting circumstances recounted the trial court. neither from the record nor apparent Rule 609 comply identifying The trial court failed to with probative this evidence was indicating fact or circumstance credibility. of defendant’s argue might have admissible under 1. The this evidence been state does 404(b). Morgan, 315 this Court In State v. Rule 608(b) 404(b) apparent analyzed it was not evidence both because similar under convictions, prior which the trial had admitted
under rule court distinguishable argued This in the alternative. case is because the state both clearly admissibility analysis convictions court’s because trial 404(b). admissibility argue under Rule 609 and because the state fails to tracks
STATE v.
*26
Defendant failed to
either to the trial court’s conclusion
object
or to the introduction of this evidence in the context
state’s
object
cross-examination. Failure to
as required
App.
N.C.R.
10(b)(1)
P.
constitutes waiver of the
right
appeal.
assert error on
Oliver,
326,
E.g., State v.
307
N.C.
S.E.2d 304. Even under
done,
review
appellate
duty
justice
under this Court’s
to see
Black,
736,
(Martin, J.,
308 N.C.
concurring),
error,” Black,
or reviewed as
“plain
303 S.E.2d
the evidence
precludes any possibility
introduced
of prejudice. Given
alone,
evidentiary
weight
guilt
borne in defendant’s statement
there
possibility
is no
the improper admission of the two convictions
of assaults on females could
prejudiced
any way,
have
defendant in
15A-1443(b)(1988);
least of all in the jury’s verdict. See N.C.G.S. §
Black,
308 N.C.
Three issues raised defendant with regard to the guilt- phase innocence of his trial concern alleged errors the trial court’s charge jury. final objected Since defendant to none trial, of these instances at this Court must review consequently the alleged “plain errors under the error” standard of State v. Odom, 655, 660-61, 378-79 which error, defendant must convince appellate court that absent the the jury probably would have reached a different verdict. State Walker, S.E.2d 80. [11] The first of these alleged errors jury charge was the trial court’s out the singling testimony of defendant and his sister when it delivered its on charge prior inconsistent De statements. fendant accuracy admits the of applying this charge to these two witnesses, but asserts that the trial court’s omitting similar mention of two witnesses for the prosecution constituted an impermissible expression judicial opinion violation of N.C.G.S. 15A-1222 §§ perceives Defendant an inconsistency worthy of instruction in testimony of Alice McLaughlin, who testified that she heard Joann Brockman screaming for help, but who failed to tell this to the officer who later testified in corroboration of her testimony. Defendant also contends that variations in David Moore’s estimations of the time he left day for work on the Joann Brockman was killed required the trial court signal an incon sistency in prior his statement to officers. v. prior statements
The trial court instructed corroboration tend- had received as certain named witnesses been testimony with their the statements were consistent to show that ing prior to assess these statements trial. The court directed the credibility. for their on the witness’ bearing not for their truth but inconsist- regarding prior then a similar instruction gave The court ent statements: to show that at an tending
Evidence has been received
witness,
Artis,
Roscoe
and the witness Pauline
earlier time the
Smith,
each made a statement which conflicts
respectively,
testimony
trial.
his
her
at this
respective
with
as evidence
You must not consider such earlier statement
*27
time,
that earlier
because
of the truth of what was said at
you
If
under oath in this trial.
believe
it was not made
that it does conflict with
such earlier statement was made and
trial,
you may
then
con-
testimony
of the witness at this
with
other facts and circumstances bear-
together
sider this
all
you
whether
deciding
the witness’ truthfulness
ing upon
testimony
or her
at this trial.
will
or disbelieve his
believe
state,
recapitulate,
is not
required
trial court
Although
of law
explain
application
the evidence or to
summarize
evidence,
free to do
15A-1232
the court is
N.C.G.S. §
Williams,
338 S.E.2d
315 N.C.
so
its discretion. State
(1986). However,
must
vigilant
in so
the trial court
be
doing,
the evidence or
quality
an
as to the
express
opinion
not to
during
witness: “No
time
credibility
judge
as to the
of a
testimony
doubt
permitted
upon
the trial of a cause is
to cast
Auston, 223
credibility.” State v.
witness or to
his
impeach
of a
(1943).
that,
clearly
reveal
rather
charge
The words of the trial court’s
whether the
statements
opinion regarding
prior
than
an
expressing
testimony, the
with their
or Pauline Smith conflicted
of defendant
state-
prior
whether the
admonished the
to determine
court
and,
so,
with
if
whether it conflicted
ment had been made at all
neither a violation
testimony
at trial. This was
presented
error.
15A-1232 nor otherwise
N.C.G.S. §
Moreover,
to include mention
chose not
properly
the trial court
on
prior
charge
inconsistencies
its
alleged
of these
First,
testimony corroborating
statements.
officer’s
inconsistent
IN THE SUPREME COURT
that of Alice McLaughlin did not purport
comprehensive:
to be
he reiterated no
from
excerpt
McLaughlin’s
Ms.
prior statement
her
impeached
testimony, and made no reference whatsoever
Mack,
to her having heard or not heard cries for
help. Cf.
(1972) (officer
282 N.C.
We emphatically disagree. The trial court’s statement of the
law was an accurate reiteration of
by
circumstances identified
this
in,
Williams,
47,
e.g.,
335,
Court
v.
State
308 N.C.
301 S.E.2d
cert.
denied,
865,
117,
denied,
1004,
464 U.S.
78 L.Ed.2d
reh’g
464 U.S.
(1983);
Walters,
615,
78
704
L.Ed.2d
275 N.C.
170 S.E.2d
(1969).
one,
There was evidence supporting not
but all of these
circumstances from which the jury could have inferred that Joann
First,
Brockman’s murder
premeditated
and deliberated.
although defendant testified that he and Joann
argued
had
about
Lumberton,
a
rival
the words defendant testified had passed
between them
by
can
no means be said to have
adequate
been
to provoke a
killing
passion
heat of
by
or one motivated
any other mens rea less inculpatory
premeditation
than
and delibera
See,
tion.
e.g., State v. Cummings, N.C.
S.E.2d 541
(1988). Second, defendant’s own description of his conduct before
v. ARTIS
assault,
and,
death,
a
an
after Joann’s
killing
rape,
indicated
the
body
the
and an unconcerned walk back
attempt
camouflage
an
to
Third,
by
for
death
nap.
strangulation
his sister’s house
a
has
to
Prevette,
this Court
in State
characterized
been
brutal,
it
ample
We that evidence all the cir- supports conclude substantial jury indicating the trial court cumstances submitted In premeditation effected after and deliberation. killing guilt- a trial, his free phase innocence received a fair trial error. prejudicial from
Sentencing Phase the trial also committed numerous Defendant asserts that court trial, them that phase among errors his sentencing statutory jury mitigating failed instruct to two court correctly *29 murder, he time of upon intoxication at and whether directing to consider instruction requested an criminality his conduct capacity appreciate STATE v. or to conform his conduct to the requirements of the law was impaired. instruction,
The trial judge gave portion a of the requested limiting statutory consideration of the circumstance to the evidence of intoxication: You would find this mitigating you circumstance if find Artis, 21, 1983,
that Roscoe on the evening of October drank three beers and on the morning October before the killing, drank two swallows of Peppermint Schnapps, given Roscoe Artis’ reaction to the Peppermint drank, he Schnapps that someone must have put something it, impaired capacity his to appreciate the conduct, criminality of his or to conform his conduct to the requirements of law.
The trial judge did not instruct the jury to consider defendant’s mental retardation with respect statutory cir- mitigating cumstance. cumstance, Instead she submitted separate, nonstatutory cir-
instructing jury to “consider whether Roscoe Artis’ retardation, bordering on mild mental with a full scale intelligence quotient sixty-seven, is a mitigating factor.”
Defendant argues that judge’s trial failure to relate his mental retardation specifically statutory mitigating cir- precluded cumstance from adequate consideration of the evidence, mitigating thereby violating rights his process due of law and to freedom from cruel and unusual punishment. We find no merit to this assertion. Jordan,
Dan clinical psychologist at the Southeastern Regional Center, Mental Health testified on direct examination that defend- I.Q. ant had a full scale score of indicating upper-range mild retardation. He noted that defendant had no brain damage and level, subtract, could read at a fifth-grade add and and make simple change. He further testified that under normal circumstances in- dividuals at defendant’s level of intellectual functioning are capable of “social and vocational adequacies” generally and are considered to be responsible for their behavior.
On Mr. cross-examination Jordan stated that defendant could license, hold job, be issued a driver’s generally “cope with life.” He reiterated his earlier evaluation of defendant’s capabilities as follows: *30 (1989)] N.C. 278
[325 Q. Now, I.Q., you . . not . are that because his saying of
he did not know the difference right wrong; between and you? are
A. I any didn’t make statement that. about Q. that, you you? But are saying just not are I’m trying it,
clarify now. I A. said he generally No. was for responsible his behavior. Q. Okay. you say you Did have may already testified that — —persons to this level functioning capable this are adequacies
social vocational under normal life’s circumstances? Yes,
A. sir. Q. Okay. And that unless other impaired, they general- wise are
ly responsible considered to be for their behavior. That about; you’re what talking is isn’t it?
A. right. That’s Mr.
Although testimony Jordan’s some evidence of presented retardation, defendant’s mild it suggest failed to link between inability criminality condition defendant’s appreciate of his conduct to conform his conduct to the requirements the contrary, the law. To of the all evidence tended to show that persons suffering from upper-range generally mild retardation are responsible their own actions. While bare of a low evidence I.Q. justify nonstatutory can submission of a worded properly circumstance, Pinch, 1, mitigating 292 S.E.2d (1982), denied, denied, cert. 459 U.S. 74 L.Ed.2d reh’g insufficient, 459 U.S. is simply L.Ed.2d it more, without to require relating an instruction this evidence to the “impaired capacity” statutory mitigating circumstance. reason, Stokes,
For this defendant’s reliance on State v. In Stokes we misplaced. awarded new hearing defendant a based on trial court’s failure sentencing circumstances, to submit mitigating including impaired certain 15A-2000(f)(6). Stokes, however, circumstance of In capacity N.C.G.S.§ presented support impaired cir- capacity I.Q. beyond went mere evidence of the cumstance Testimony I.Q. only tended to Stokes had show an IN THE SUPREME COURT retarded, history he mildly long but also that had a problems diagnosed for mental and had been as suffer- treatment evidence was more ing from an antisocial disorder. Such far substan- assignment here. of error is overruled. presented tial than that This [14] trial to the court’s failure Defendant also assigns error instruct *31 in sentencing phase jury on statutory of his no significant prior that defendant had circumstance mitigating activity. criminal 117, 143, 589, Wilson, 322 367 S.E.2d 604 N.C.
In State (1988), duty it the trial “to this noted that is court’s determine Court jury signifi- could conclude that defendant had no whether a rational Then, activity.” history once the court has prior of criminal cant decided, jury, is submitted to the mitigating circumstance so the evidence is sufficient must decide for itself whether which activity history of criminal and thus significant a to constitute In the of of circumstance. Id. context N.C.G.S. finding preclude 15A-2000(f)(l), § activity likely in- have means
“[Significant” its by jury of the determination upon fluence or effect words, prior ... In other criminal sentence. recommended by irrelevant activity jury completely be to be could found activity The of the defendant sentencing. prior of to the issue unworthy of con- to be completely be found could There be evidence decision. could arriving in its sideration no in- activity that would have in one case criminal prior case, verdict, which, in jury’s another effect on the fluence or evidence. pivotal could be the (Martin, J., 147, 589, Wilson, 117, 367 609 concur S.E.2d activities, Thus, criminal merely prior the number of is not it
ring).
the trial court considers
of such acts that
age
but the nature and
juror could
evidence a rational
in
whether
such
determining
Wilson,
See, e.g.,
exists.
circumstance
this mitigating
conclude that
(error
117,
cir
mitigating
not to submit
cumstance to the
proper, notwithstanding showing
record
convictions,
eighteen felony
all acquired during
youth).
Defendant
no
presented
his own
supporting
circumstance,
mitigating
but his voir dire
the prose-
examination
cutor
number
past
revealed a
convictions. These included assault
1957,
on a female with intent to
in
rape
commit
assault on a female
1967,
1974,
in
on
assault
a female in
escape
larceny
of an
automobile in
larceny
misdemeanor
driving while
license revoked in
driving while under the
influence in 1974 and
with no
license
driving
operator’s
deadly
and assault with a
weapon
jury,
1975. Before the
defendant admitted that he
only
had been convicted
of the 1957
and 1967
He
assaults.
denied the assault on
Ann
Billie
Woods
leading
to the 1974'conviction
memory
and denied
of the other
convictions.
trial court had
proof
barred
state’s
all but
the 1957 and 1967 assault
*32
suggests
convictions. Defendant
that
these latter convictions would never have come to the attention
convictions,
alone,
of
jury,
the
the two
that
assault
standing
would
jury’s
have
in
supported
finding mitigation that defendant
(This
activity.
had no significant prior criminal
does
argument
not
third,
female,
include mention
the
of
most recent assault on a
about
testified.)
victim,
Woods,
which the
Billie Ann
First,
Defendant’s
is untenable for three
the
position
reasons.
trial
aware
court was
of defendant’s
plethora
past
including that
from the
arising
assault on Billie Ann
convictions—
Woods—in
the
making
initial determination whether “a rational
jury could conclude that
no significant history
defendant had
of
Wilson,
activity.”
prior criminal
at
held of all these also the but because of nature of the two convictions acknowledged. assault which defendant had
Second, the propriety the trial court’s determination that jury rational would not have found that defendant a signifi- lacked activity by cant is prior history hindsight; criminal revealed words, in prejudice by other defendant suffered no virtue of the 15A-1443(a)(1988). trial court’s action. See N.C.G.S. In considering § its for punishment jury aggravating recommendation the found three Among finding circumstances. these was the that defendant had felony been to the previously involving convicted of a violence in the record reflected that evidence fact person. Given that, females, despite it is unimaginable assaults on one but three it, same underlying jury might and the evidence finding this to be circumstance simultaneously aggravating have found that reasonably existence of the infer the so irrelevant it could 15A-2000(f)(l). in circumstance N.C.G.S. mitigating Third, mitigating mandates that a circumstance the statute “may when be for consideration it submitted to the its be 15A-2000(b)(1988).All the by supported the evidence.” N.C.G.S. § just into the trial court —not must be taken account for other purposes. the court has ruled admissible that which However, trial throughout his breath a defendant cannot hold evidentiary emerge light, never into hopes prior convictions for incomplete support record point deceptively then cir- duty mitigating to submit the trial court’s ostensible right jury’s engage for consideration. cumstance to due right neither subterfuge required such punish- his to be free from cruel and unusual right nor process Wilson, 117, 367 S.E.2d legislature ment. 589. “[T]he Cf. to limit the State or the defendant be allowed did not intend that statutorily . . any . established way jury’s consideration Lloyd, circumstances.” aggravating mitigating only trial must means not that the court 364 S.E.2d at This circumstance that jury’s mitigating offer consideration id., evidence, reasonably by the supported find might that, appears support when evidence educed at trial but also prior had no significant circumstance that defendant mitigating activity, history parties given oppor- criminal both must be *33 rebutting or tunity supporting introduce to additional 81, Laws, State v. 381 that circumstance. See (1989). 609
[15] Defendant next contends that the trial court erred in submit that the murder jury the circumstance ting aggravating 15A-2000(e)(9). heinous, or cruel. atrocious N.C.G.S. especially We merit this assertion. find no to ap- circumstance is aggravating
We have stated that exceeds normal- brutality when the level of involved propriate when murder in question murders or the ly in first-degree found conscienceless, victim. unnecessarily the or torturous pitiless (1984); Hamlet, 837 N.C. IN THE SUPREME COURT
STATE v. N.C. 278
Goodman,
N.C.
S.E.2d 569
It also arises when
the
demonstrates an
killing
depravity
unusual
of mind on the part
of the defendant. State v.
Stanley,
S.E.2d 393
(1984).We have identified two of the
of murders which
types
meet
(1)
the above criteria:
those that are
or
physically agonizing
other-
(2)
victim,
wise dehumanizing to the
and
those that are less violent
Oliver,
but involve the infliction of
psychological torture. State
S.E.2d 304.
Defendant
insists that his crime falls into neither of these
He first
categories.
argues that the evidence was insufficient to
support a reasonable
conclusion that
murder was physically
agonizing
way
some other
dehumanizing within the meaning
He
of Oliver.
hypothesizes
victim lost consciousness
sometime
her
before
death and therefore would
felt
not have
“whatever
have
pain might
been caused
continued choking.”
clearly
Defendant
misapprehends
applicable standard. In
if there
determining
is sufficient evidence to submit a particular
circumstance
aggravating
jury,
judge
must consider
the evidence in the light most favorable to the state. State v.
Lloyd,
is caused and constriction of the compression windpipe carry blood vessels the neck which blood to the brain so that both the air to the lungs supply blood brain are air, normally shut off. As the heart fails from lack of the fluid that is pumped through lungs by the heart accumulates in the air It takes five spaces. strangula- four to minutes for a victim of manual *34 N.C. necessarily lose consciousness would not The victim
tion to die. in the neck area pain, particularly suffer immediately and would exerted, of time. Ultimate- period during where the pressure fluids. or her own blood and actually drown his would ly, the victim evidence, light most when viewed We hold that state, in- a reasonable support was sufficient favorable her ordeal and during remained conscious that the victim ference as, from and bruised already bloodied pain great physical suffered draw blood violence to was with sufficient raped she beatings, her neck was forcefully that so strangled her vagina from scratched. repeatedly the murder an inference that supports also
The
evidence
physical
the vic-
testified that
pathologist
dehumanizing.
especially
during
with
the act
consistent
death
vagina was
tim’s dilated
during
perpetration
place
When a murder takes
intercourse.
victim,
unusually humiliating
it is
upon
violent sexual assault
of a
assault-strangulation
sexual
We note that
other
debasing.
submission of
supported
we
found that
cases
have
15A-2000(e)(9).
Johnson,
v.
State
E.g.,
in N.C.G.S.
the circumstance
(1979) (defendant
his ten-
strangled
S.E.2d 752
N.C.
sexually
him either
assaulting
stringer,
with a fish
year-old victim
Johnson, 298
v.
State
killing);
or after
during
(1979) (defendant
until
lost
his victim
she
strangled
S.E.2d 597
her).
consciousness,
raped
then
support
this case do not
that the facts of
argues
Defendant also
psychological
the infliction of
that the murder involved
finding
vein,
governed
that his case is
In this
he contends
torture.
Moose,
In defendant drove back Stanley, home, rapid nine times in succession then shot her wife’s estranged walk. Just before to take a from the house emerged when she We noted “Please Stan.” victim uttered the words shooting behavior, victim, felt had not of defendant’s cognizant *35 n (1989)] [325 by so threatened his in presence to neighborhood remain in the house. She was apparently unaware of until danger up the moment of the We held shooting. that this evidence did not support an inference that the defendant had tor- psychologically by tured his wife her stalking prior to the shooting. Moose, mile,
In the defendant followed the victim for over a sounding his horn and bumping victim’s car with his pickup road, truck. When the victim pulled off the the defendant pointed a shotgun through the window the truck for a period of about five seconds him. before shooting killing Just before the shooting, God, the victim exclaimed “Oh they what are going to do?” We noted that although the evidence showed some amount of apprehen- victim, sion on the part of there was no evidence that he believed that the ultimate result of the pursuit would Therefore, be death. an inference that he had suffered psychological torture was unsupported.
Thus, in analysis each case our of the psychological torture whether, issue centered upon question of prior to the actual killing, victim was in fear likely that death was to result from the defendant’s actions.
Defendant, Moose, seeking equate to his case with Stanley and opines that there was no evidence suggest to that Joann Brockman experienced fear or suspected that her life was in danger “until the killing underway.”2 was well Defendant’s argument misses the mark because he perceive fails to an essential difference between the shooting deaths in Moose Stanley by and the death strangula- nature, tion here. Manual strangulation, very may its require a continued murderous effort on the of the part assailant for a period of to four to five up minutes. The process is a prolonged one which the during victim’s life is quite literally in the hands of the assailant. In the grasp, murderer’s the victim is rendered death, helpless, aware of impending utterly but incapable pre- recognize passing present 2. We in the state did fact evidence of prior strangulation. the victim’s fear to the A witness testified that she heard times, cry help Joann three and defendant’s own statement admitted that stick, obeyed after he hit her twice with a she his order to remove her clothes However, purposes opinion, because she was afraid of him. for the of this we prior strangulation, assume that defendant’s actions like the actions of the Stanley, support defendants Moose and were insufficient a reasonable in- ference that the victim feared imminent death. IN COURT THE SUPREME surely murderer adds The intimate venting proximity it. torment, escape foreclosed. possibility appears as all victim’s evidence,
Here,
light,
viewed
its most favorable
the state’s
victim,
immobilized
several
though
tended to show
defendant’s weight,
head and
pinned
ground
blows
sexually
her
and began
remained
as defendant violated
conscious
*36
her
the life out of
with his bare hands.
choking
the slow
of
process
circumstances,
under
may
While five minutes
a short time
most
be
eternity. A
of life it can be an
when
for the breath
struggling
the
tremendous
experienced
could infer that
victim
jury
reasonable
period
terror
this
of
anguish
during
strangulation.
not,
to a
suggests,
holding
This
as defendant
tantamount
is
finding
of the
supports
aggravating
that
death
itself
lingering
instantaneous, however, does not
“That
is not
circumstance.
death
heinous,
Stanley,
atrocious
cruel.”
especially
alone make a murder
or
337,
See,
Hamlette,
e.g.,
312
at
State v.
IN THE COURT SUPREME STATE v. opin- the trial court’s expression of impermissible as an
instruction in violation of N.C.G.S. proof of fact or its question ion on a and 1232. 15A-1222 §§ the chal We conclude that object failed to at trial. Defendant Torain, 316 N.C. error. See instruction did not constitute
lenged 340 S.E.2d necessary to show that it is not preliminarily We note felony in prior element of a threat of violence is an the use or aggravating of this felony support for a to be used prior order McDougall, remarked in State As this Court circumstance. denied, 308, 319, 78 L.Ed.2d cert. U.S. “ . . . ‘involving’ of the word selection legislature’s one restrict expansive much more than interpretation an indicatefd] the use or threat only having felonies to consider ing Hence, element.” in order to substan violence to the as an person .circumstance, prior to cite a enough it is aggravating tiate this felony involved use simply felony in which the commission or threat of violence. *37 however, or threat that the use question,
There no can be with on a female the of assault among of violence is elements flatly “rape stated that This has rape. intent to commit Court threat of violence element the ‘use or felony which has as an is a ” person with another Id. intercourse Rape, vaginal the person.’ (1986), will, 14-27.2 the victim’s N.C.G.S. by against force and definition, of violence and it is a crime by any is an act of violence law. as a matter of
Furthermore, threat element the use or also has as an assault rules under which a are two person. to the of violence “[T]here Carolina,” State in North for assault may prosecuted be person 655, 658, 155 Roberts, and violence law either rule. common the offense under is an element of unequivocal attempt, or an of is “an overt act offense assault violence, to do some with force and attempt, of an appearance another, which show of person to the physical injury immediate a put person sufficient to of violence must be of force or menace Id. Alter bodily harm.” in fear of immediate firmness of reasonable intent reference to the may without natively, proved assault be accompanied “show of violence where there is a perpetrator bodily injury harm or immediate of apprehension reasonable THE SUPREME COURT IN STATE v. N.C. 278 n engage him to which causes person assailed part on the of Id. followed.” otherwise have he would not of conduct in a course is an act rape intent to commit woman with An on a assault subsequent intent to commit with the together exhibiting violence law, such, is, “involv- offense an it as a matter As act of violence. The trial court the person.” violence to threat of the use or ing jury. instructing err in so did not whether it is the issue of it is that Parenthetically, patent female with intent on a jury that assault instruct error to is a question a matter of law violent crime as is a rape to commit law, with regard of fact question The pertinent one of fact. not con- defendant had been circumstance —whether aggravating to this of the sentenc- province within the victed of this offense—remained Questions elements of the offense regarding of fact ing jury. fact-finder, jury or already prior determined had been itself in the determination simply implied their existence was and convicted of had indeed been that defendant sentencing jury from the by any opinion was untainted finding This that offense. statutory offended that this instruction contention bench. Defendant’s on mat- judicial opinion concerning expression proscriptions without merit. plainly proof ters of fact or their [17] Defendant next contends that it was error for the trial court the murder was com that circumstance aggravating to submit rape of a in the commission engaged while mitted could be considered that this offense instructing without only if its basis was degree in the first of murder aggravation deliberation, upon if it was based but premeditation insuffi the evidence was argues rule. Defendant felony murder upon murder based submission support cient to deliberation, reversible it was thus premeditation felony in the underlying rule to submit Cherry under the error *38 Oliver, See, 302 State v. N.C. e.g., sentence. of his aggravation 28, Silhan, 223, (1981); 302 275 S.E.2d v. N.C. S.E.2d 183 State 274 (1979), 86, (1981); 551 298 257 S.E.2d Cherry, v. N.C. 450 State (1980). 941, denied, 796 446 64 L.Ed.2d cert. U.S. heretofore, evidence ample there was we have concluded As first degree murder in the jury to the the submission supporting In cases where deliberation. and upon premeditation based both upon murder based guilty the defendant has found jury murder, held felony we have and and deliberation premeditation THE IN SUPREME COURT felony of the is not the commission that because unequivocally murder, and deliberated premeditated element of a an essential cir- jury aggravating to the as an may be submitted properly it 47, 335; Williams, 301 S.E.2d v. 308 N.C. E.g., cumstance. State Rook, 201, 283 732. This case is no dif- v. State ferent, err court did not we hold once trial again and circumstance aggravating to consider as an allowing felony murder. conviction for felony underlying intervene at several [18] Defendant next points assigns error to the trial court’s failure prosecutor’s sentencing argument ex fervor prosecutor’s prejudicially contends the where defendant view, prosecutor’s In defendant’s propriety. the bounds of ceeded beyond it went lurid and melodramatic that rhetoric was at times so fair, passions to inflame the being calculated impartial argument, 1 ABA generally See Bar Standards jury. prejudices 3-5.8(c)(1986). Function, Justice, The Prosecution for Criminal noted that counsel are allowed wide repeatedly This has Court Brown, hotly E.g., contested cases. arguing latitude denied, 970, 179, 1, cert. 98 L.Ed.2d 358 S.E.2d U.S. N.C. (1987); 92, Huffstetler, 312 322 S.E.2d denied, 85 L.Ed.2d “Counsel cert. 471 U.S. and all may to the the facts argue each side with the together inferences to be drawn therefrom reasonable her side of the case.” present law so as to his or relevant stetler, Huff 123. Whether an advocate 322 S.E.2d at N.C. at sound discretion largely is left privilege has abused this object Where the has failed to the trial court. Id. so argument flag in the state’s impropriety to an alleged court, may argu review the appellate trial an court error for the gross . . . must be impropriety But “the notwithstanding. ment judge to hold that a trial abused in order for this Court indeed ex mero motu an recognizing correcting in not his discretion counsel did not believe apparently which defense argument Johnson, when he heard it.” State prejudicial alleged prosecutorial instance of object Defendant did to the first excite was calculated to a tactic defendant contends impropriety, prosecutor at the of their reason. jurors’ expense sentiment pause he would clock a four-minute jurors forewarned long as your just to “hold breath in which he wished each *39 STATE v. you you yourself can. I’m not to in the asking place position you . . T Joanne Brockman. . want to understand . . . the [B]ut dynamics I strangulation, you of manual and want to understand in just long how four minutes is that context.” the caveat Despite jurors that he did not in the expect put themselves shoes victim, the prosecutor continued in words that urged jurors just to do that: minutes,
[Wjhile
you
analyze
we are
all four
I
counting
want
your
in
you
mind the evidence that
have seen
this case.
you
I want
to think
I
you
about it. want
to think
about
woods,
helplessness of Joanne Brockman there in those
con-
fronted with
I
large
you
this
man. want
to think about the
fear
experienced.
you
that she must have
I want
to think
about
the brutal
that he
strength
brought
to bear on her
body as he knocked her around and
her on the
got
ground
her
raped
you
choked
her. And I want
to think about
she was in. I
surroundings
you
want
to think about the
beauty of
place
as she lie
there dying, helpless, because
[sic]
man,
table,
this
at the next
sitting
was determined to vent
body
his lust
her
any
on
cost and
hazard to her. I
you
want
to think about the loneliness of death. Her
alone
[sic]
woods,
once,
twice,
hit
the head
hit in the head
times;
hit in the head three
her
going
cries
across
tree
those
tops, “Help, help, help,” and no one came.
I
you
And want
about,
to think
Ladies and Gentlemen
the Jury,
your
as
out,
testimony
air starts to run
that she (indicating) tried
bring
precious
that most
thing
body
into her
and was unable
it,
man,
here,
to do
because
had her
sitting
the throat
think, also,
slowly
and was
you
her. And I
murdering
want
Ladies and
Jury,
Gentlemen of the
about the pain as described
doctor;
neck,
by the
pain in the
the fluid
filling
lungs.
It
is to be noted that
this argument
the state
during
occurred
trial,
the sentencing phase of this
and we find it neither improper
nor prejudicial. Wide latitude is allowed the arguments of counsel
trial, see,
in both the guilt
sentencing phases
e.g.,
of a
Pinch,
However,
306
During guilt phase of a the focus is on guilt consideration, Mercy versus innocence. is not just preju- THE IN SUPREME COURT
STATE v. ARTIS (1989)] N.C. [325 dice, victim, may pity inappropriate for the or fear be an basis as to or innocence. which jury guilt Arguments for a decision prejudicial. these factors are deemed emphasize properly However, considerations are different. during sentencing, is on the circumstances of the crime and the character emphasis of the criminal. (citations Oliver, 304, v. 307 S.E.2d
State
N.C.
omitted).
jurors
to
the “circumstances of
Urging
appreciate
voluntarily
deprivation
the crime”
them
to suffer
asking
oxygen
may inappropriately
apprecia-
stress an emotional over a rational
circumstances,
certainly “may
tion of those
have strained the
Brown, 320
rational connection between evidence and inference.”
206,
[19] Defendant also
objected
to a
portion
prosecutor’s
sen
in which he remarked that the reason defendant’s
tencing argument
son,
testify
on the
to
daughter,
put
and aunt had been
stand
history
defendant’s character and
was to evoke the
personal
This was
jury’s sympathy.
objection
Defendant’s
was overruled.
for the
to characterize and to contest
proper,
permitted
state
nonstatutory
See
proffered
mitigating
of
circumstances.
weight
disregard
Id.
93 L.Ed.2d at
the evidence.
were divorced from
evidence,
by the
supported
are to be
circumstances
Mitigating
the prosecu-
import
This seems to have been
emotion.
statement,
such,
The trial court’s
improper.
was not
tor’s
and as
accurately
how the
articulated
charge
final
mitigating punishment:
purposes
was to be viewed for
which
is a fact or
of facts
group
A
circumstance
mitigating
killing,
or excuse for a
justification
not constitute a
do
*41
murder,
degree
crime
first
degree
it to a lesser
of
than
reduce
or
the
may
extenuating
reducing
considered as
but which
be
making
deserving
the
or
it less
culpability
killing,
moral
of
first
murders.
degree
extreme
than other
punishment
law,
paraphrasing
statement of the
Court’s
This was a correct
408,
It was so brutal. It was without life, one unnecessary. only He took her he took a loved aunt, here, uncle, from those who have testified So, marry. only he not took something she was to going man that Brockman, folks. something he took from these from Joanne that, society, from of because something he took all doing And you society just to as much as belonged Joanne Brockman I do or do. remarks, he now object urges to these
Although defendant failed “glaring gross- to be so impropriety their recognize this Court failing the trial court erred in ly that it could be said egregious” Pinch, 1, sponte. sua to take corrective action 18, 203, 218. 292 S.E.2d Defendant asserts magnitude. error of such perceive
We
no
victim
disapproval
comprehended
remarks are
that these
THE
IN
SUPREME COURT
496, 482 U.S.
L.Ed.2d
Maryland,
in Booth v.
statements
impact
(1987).
1056,
denied,
440,
But there
such error was harmless Brown, 15A-1443(b)(1988); N.C.G.S. doubt. [22] jury’s Defendant also failed attention to defendant’s object demeanor, when the suggesting prosecutor called they of remorse: signs without visible a man
perceived
there,
and Gentlemen of
Artis over
Ladies
Look at Roscoe
*42
the trial. Is this a
Jury.
throughout
him
the
You watched
You have observed
man of contrition?
man of remorse? Is this a
in
him
here
the
sitting
You have observed
him on the stand.
Courtroom,
you
Have
seen the
almost two weeks.
now for
the first
you
him? Have
seen
of contrition about
sign
first
him to show there’s a conscience
of remorse about
sign
him?
body working on
in that head or
somewhere
or his
his silence at trial
“exploiting”
contends that
Defendant
a failure to
by
rights
these
guilt
dubbing
to admit
unwillingness
and to stand
plead
guilty
his
not
right
remorse violates
express
Harbison,
See State
proceedings.
plea throughout
1123,
denied,
(1985),
175,
cert.
U.S.
Today day. Who judgment, wrote that Ladies judgment Jury? you Are write and Gentlemen it? You going write This man here his anything. sitting right don’t wrote judgment own in this case. overruled, objection point prosecu-
Defendant’s at this and the continued: tor he
He wrote his own this case when broke the judgment law, when he killed and murdered Joanne Brockman on the October, He passed 22d of 1983.He on himself. judgment wrote warrant, and, you own death which is to sign his now for therefore, make it lawful. *43 context, were plain
Viewed it is these words calculated where responsibility, relieve the of its such as it is jury not to any error it jury sentencing to a that make suggested might Jones, checked 296 N.C. appeal, e.g., would be on (1979), jury but to indicate to the the fact that defendant, another, life they, who chose take the it was not to
STATE v. defendant, that it who they, and was was master of his own McNeil, We fate. held in S.E.2d that the was argument identical not so the grossly improper require as to that, trial court to intervene ex We mero motu. hold here even where defendant the opportunity object, propriety seizes to the this argument is within the sound discretion of the trial court. [24] The prosecutor also urged jury to consider community responses to their recommendation: sentencing acts, you
When of such hear Ladies and of the Gentlemen think, “Well, Jury, you somebody ought something to do about Well, that.” you somebody know who You that is? are the somebody. somebody are the everybody You that talks about there, uncomfortable, your out duty and be may but it’s necessary, necessary absolutely duty. an
The officers can do The do no no more. State can more. Now, The do no Judge entirely you. can more. it’s to up eyes County you. speak Robeson are on You for Robeson County, say you by your you and verdict how about such feel vile community. acts there You message. send a You send anyone a Roscoe Artis. You send a message message community out there in the would in his foot steps who follow with a as deed such this. objection
Defendant’s last remark was sustained and the Nevertheless, jury disregard instructed to it. observes words same preceding message. delivered the substantive He avers that were these statements could be “construed that the telling community sought as citizens of and defendant,” punishment demanded conviction which this Scott, held in State v. Court to be invitation to evidence improper ignore “an already cry.” full hark to a hot on trail and in pack accurately only last of the striking
Defendant notes that as the prosecutor’s preceding remarks ineffectual insofar remarks Nevertheless, subject not objec- contain same matter. it is will tionable to tell the that its verdict “send message community” may person about what convicted of murder befall in a court justice. objectionable What is is to improper jury community capital punish- intimate to the preferences regarding ment, for neither nor proper these are otherwise con- *44 IN THE SUPREME COURT ARTIS
STATE v. (1989)] [325 must not ask The state sentencing jury. siderations Id. a voice.” community rather than “to lend an ear (Tex. State, App. Crim. 626 S.W.2d Prado v. (quoting 1982)). However, jury, to remind improper it is not here, communi- of the voice is the conscience that its did prosecutor 909; Brown, McNeil, See, 375 S.E.2d 324 N.C. ty. e.g., Scott, 1; 296. The 333 S.E.2d remarks to stand in these permitting not err trial court did uncorrected. for one convicted punishment the appropriate In that arguing
[25] of murder is occasionally Bible, death, read from the copiously the prosecutor reference to North with passages biblical interspersing law: Carolina with instrument if he smite him an
Listen to this: “And iron, die, The murderer shall he a murderer. so that he throwing if he smite him with to death. And surely put be die, die, he he is a murderer. may he wherewith a stone if he Or smite surely put be death. The murderer shall die, wood, may he wherewith weapon with hand or him die, surely murderer shall be murderer. The he he is a hatred, hurl him him of or If he thrust to death. put wait, die, enmity smite him with his he laying hand, die, surely put he him shall be he that smote death, for he is a murderer.”
Now, shall be for a statute things to this: “So these listen Jury, what .” and Gentlemen of . . Ladies judgment simply 15A-2000? It’s a statute Statute is North Carolina your you through unto judgment “. . . a statute of judgment. any person, killeth your dwellings. Whoso all generations of witnesses death the mouth put murderer shall be Moreover, for the life ye take no satisfaction shall ...[.] death, murderer, surely he but shall be guilty which is of a to death.” put the New counsel that
Anticipating argument also assured prosecutor forgiveness, Testament teaches remain punishment regarding capital laws jury that these biblical by the New Testament. unaffected prosecutor’s object portion to this Defendant failed to an of- prosecutor, that for a argues vigorously now discourse but STATE v. N.C. 278 *45 state,
ficer of the to serve as an apologist proponent for a particular religious orientation violates the principle separa- Const, state, I, XIV, tion of church and see U.S. amends. and the Const, prohibition cruel and against punishment, unusual U.S. amend. Const, VIII; I, 13, N.C. art. 19. Defendant these urges §§ passages suggest that “the responsibility for ultimate deter- others,” mination of death will rest with Caldwell v. Mississippi, 320, 333, 231, 242, 472 U.S. 86 they L.Ed.2d and that detract from the proper bases for sentencing character of the criminal and —the Brown, 179, the nature E.g., of the crime. 320 358 N.C. S.E.2d
In their
arguments
jury,
before
counsel for both sides
are entitled to argue the law and the
in
facts
evidence and all
Brown;
reasonable inferences
may
be drawn
E.g.,
therefrom.
92,
Huffstetler,
State v.
312
322
N.C.
S.E.2d 110. Neither the “law”
and,
nor the “facts in evidence” include
passages,
strictly
biblical
speaking,
it is improper
party
for a
either
to base or to color
his arguments with such extraneous' material.
v. Cherry,
See State
86,
However,
298 N.C.
Assuming error
it
arguendo,
plain
others,
as it has been in
that these
were not so
arguments
improper
as to require
intervention
ex mero motu. E.g.,
trial court
Hunt,
400; Brown,
N.C.
S.E.2d
1; Oliver,
versible error [26] Defendant next contends that denying defendant’s motion the trial court appropriate committed re relief, the second failure of the to disclose prosecutor which concerned the report. The nondisclosed pages two of the medical examiner’s summary of the circumstances surround one-paragraph was a page death: ing Joann Brockman’s with
Pt. left about 11:00 a.m. Roscoe home at apparently later, family say but members Artis. heard screaming Was not return they saw that time she was Did alright. her at found in the woods dead. Had some lying home. Was later her neck. blood her nose and some bruises on from *46 constitutes evidence paragraph suppressed Defendant avers that Brady 373 U.S. punishment,” Maryland, “material to or guilt defense, (1963), his and favorable to L.Ed.2d rights his that nondisclosure amounts to violation of its Brady. process of due under 15A-1415,
In reviewing pursuant orders entered N.C.G.S. § relief, this Court which the for grounds post-conviction dictates they the trial where findings is bound fact of court Stevens, 305 by competent evidence. State v. supported are 712, (1982). findings underly- the trial Among S.E.2d 585 court’s relief were appropriate its denial of defendant’s motion ing facts: following compiled 10. Dr. Kile examiner who had That medical [the summary] his report the medical and its obtained information Brown, relayed who summary through for the Leveda narrative Patterson, dispatcher Delois through information from mother the deceased. Maynor
11. Detective whom Dr. Kile testified That [from Kile he had his never to Dr. obtained stated that information] family had heard Ms. Brockman scream but that members Maynor any other she that Detective nor law alright; was had effect and during enforcement officer information family the entire of the no member ever investigation course Maynor any other law enforcement officer told Detective she seen with that Brockman was seen alive after defendant. Maynor Detective did not confirm the second That summary Kile. the narrative with Dr.
sentence of N.C. 278 Based these upon findings and other of fact the trial court conclud- ed, inter alia3 heavily insofar as the state’s case relied most statements, on testimony defendant’s the remainder of the of its corroborative, merely witnesses was and that of Alice McLaughlin, only witness who had testified as to Joann’s cries for help, McDowell, expendable. Citing (1984), Dixon, nom., vac. on other grounds sub McDowell v.
Our review of the record on defendant’s motion hearing for appropriate relief reveals that strongly supports these findings they conclusions of law that underlie.
The information summary contained paragraph report medical was not of sufficient significance that its omission from defendant’s arsenal of evidence would result in the denial of defendant’s to a right Agurs, fair trial. See United States 427 U.S. 49 L.Ed.2d Nondisclosed informa- that, “only tion is material if probability there is a reasonable defense, had the evidence been disclosed to the result of the would have been different. A proceeding probability’ ‘reasonable *47 is a sufficient to probability undermine confidence the outcome.” 667, 682, Bagley, United States v. 87 L.Ed.2d U.S. materiality “hinges This Court has stated that the issue of (1) strength on two factors: the of the evidence itself vis-a-vis the (2) of guilt magnitude guilt issue and the of the evidence of which McDowell, convicting jury the heard.”
301, 308. summary
Defendant
the
argues energetically
paragraph
impeaches
testimony
of Alice
McKin-
McLaughlin and Curtis
analyzed
question, argued energetically
parties
3. The trial court
Court,
prosecutor
chargeable
in their briefs before this
whether the
is
with informa-
examiner, as,
example,
tion obtained
the office of the
it is
chief medical
Brady,
chargeable
investigating
with
information
the hands of
officers. See
question.
U.S.
We conclude that the material paragraph evidence insofar as there is no its probability reasonable have the outcome of disclosure to defense would caused defend- trial to be ant’s different.
Preservation Issues has [27] recently ruled. Defendant raises anew In most instances, several issues defendant failed upon which this to object Court pertinent points Although procedurally his trial. from issues as on N.C. Rules asserting appeal, barred these error 10(b)(1),we elected to review even App. Proc. have nonetheless *48 object those errors to which defendant failed to because this case Oliver, 326, a sentence See State v. 309 involves of death. N.C. does not the facts argue 307 S.E.2d Defendant of rather, he judice precedent; argues sub it from distinguish case 335 N.C. 278 that this Court’s posture regarding these issues should be reversed. In each case we disagree and decline to do so.
First, defendant takes issue with the requirement that mitigating
result,
circumstances must be found unanimously to exist. The
avers,
he
is that circumstances found to be mitigating by some
jurors may not be considered in
process
cir-
weighing
cumstances
aggravation against circumstances in mitigation
preliminary to
deciding
appropriateness of a sentence of death.
This,
continues,
defendant
right
violates his
under the eighth amend-
ment
theof United States Constitution to have all mitigating evidence
367,
considered
jury.
See Mills v.
486
Maryland,
U.S.
(1988).
L.Ed.2d
This Court held in
McKoy,
State v.
323 N.C.
1,
12,
372 S.E.2d
that North Carolina’s sentencing scheme is
distinguishable from that found to be constitutionally infirm in
Mills, as it allows for individualized
sentencing
guards against
arbitrary
an
capricious
infliction of the
penalty.
death
Defend-
presented
ant has
no reason to deviate from that conclusion.
[28]
Defendant next complains that the
trial court’s denial of his
motion for individual voir dire
sequestration
the jurors
error. This Court has repeatedly held that
the trial court “has
broad discretion to see that a competent, fair and impartial jury
Johnson,
355,
impaneled.”
362,
State v.
298 N.C.
Reese,
757. See also State v.
752. Defendant’s speculation that the “quick answers” the jurors opposing capital punishment in this case were an effort to avoid service does not suffice as such a showing. This assignment of error is therefore overruled.
[27] Defendant next urges Court to overrule its holding that North Carolina’s death penalty statute violates the eighth and four teenth amendments to the United States Constitution and article I, sections and 27 Constitution of this state. We have previously considered all grounds asserted upon which penalty death statute of this state might violate constitutional See, rights and found them to be without merit. e.g., State Holden, denied, S.E.2d 513 cert. 486 U.S. (1988)(death 1061, 100 L.Ed.2d 935 penalty not cruel and unusual it); punishment because has discretion whether to impose *49 THE COURT IN SUPREME 336 ARTIS
STATE v.
(1989)]
278
N.C.
[325
279,
denied,
465,
Robbins,
484 U.S.
356
cert.
319
S.E.2d
v.
N.C.
(death
(1987)
918,
vague,
neither
statute
penalty
226
98 L.Ed.2d
manner,
overbroad,
nor
sub
discriminatory
involves
in a
imposed
discretion).
that
waver in the conviction
We do not now
jective
et
constitutional muster.
seq. passes
15A-2000
N.C.G.S. §
the eighth
[29]
Defendant next
amendment to
argues
have
that
mitigating
his constitutional
circumstances
right
fairly con
under
that
when the trial court instructed
impaired
sidered
that
if it determined
penalty
was to
death
“duty”
impose
its
sufficiently
circumstances
outweighed
circumstances
aggravating
in
and that the
circumstances
mitigation
aggravating
found to be
of the death
sufficiently
imposition
1,
were
to call for
substantial
308,
308
301
this
McDougall,
In State v.
N.C.
S.E.2d
penalty.
substantially similar
that instructions
specifically
Court
concluded
judice
sub
satisfied
the trial court
case
given
those
in
holding
15A-2000 and
requirements
both the
of N.C.G.S. §
(1978).
Ohio,
586,
Although
438
violation of [28] several L.Ed.2d Defendant next contends without argument prospective L.Ed.2d standards jurors Our review set out were Wainwright improperly Witherspoon record excused for cause Witt, of voir dire reveals or v. 469 U.S. analysis Illinois, 391 that she he would for cause indicated that juror each excused of cir regardless be to recommend sentence death unable court not err in excusal permitting cumstances. trial did each for cause. He of error likewise lacks merit. assignment
Defendant’s next
record,
argues,
prose-
with scant
from the
again
examples
potential
exercised
to excuse
peremptory challenges
cutor
seven
hesitancy
ability
their
to return
jurors
expressed
who
some
about
reveals
death.
our
review of the record
Again,
a sentence of
careful
jurors
that these
no hint of substantiation
defendant’s contention
ability
penalty
were
or their
all hesitant about the death
Furthermore,
in State
it under
circumstances.
impose
appropriate
v. Allen,
recently restated
this Court
constitutionally
improper
nor otherwise
it is neither
the view that
voiced
veniremen who have
to strike
challenges
peremptory
to use
*50
Robbins,
also
See
penalty.
the death
imposing
about
qualms
some
465,
that a defendant
[29]
Finally,
defendant
is not
requests
deprived
of due
Court
to reexamine
process
of
law because
its
holdings
by a
circumstance
proving mitigating
of
he bears
burden
See,
Barfield, 298
State v.
e.g.,
evidence.
of the
preponderance
907,
denied,
(1979),
306,
65 L.Ed.2d
cert.
448 U.S.
510
259 S.E.2d
N.C.
(1980);
918,
denied,
1137,
1181
State
65 L.Ed.2d
448 U.S.
reh’g
47,
Johnson,
has been
position
Proportionality
Review
[30]
Having
trial were
determined that
prejudicial
free from guilt
sentencing
error,
we now
phases
turn
the mandate of N.C.G.S.
statutory
pursuant
our
duties
15A-2000(d)(2).
check
test as. a
tripartite
The
sets forth a
statute
penalty.
of the death
imposition
capricious
the random or
Jackson,
against
Hutchins,
(1983);
26,
State v.
STATE v.
(1982),
denied,
denied,
reh’g
74 L.Ed.2d
459 U.S.
(1983).
74 L.Ed.2d
U.S.
appeal, transcript,
the record on
carefully reviewed
We have
oral arguments
with the briefs and
along
in this case
and exhibits
deliberation,
conclude
full and cautious
After
presented.
we
the aggravating
fully
jury’s finding
supports
the record
Furthermore, we
no indication that
find
submitted.
circumstances
influence of passion,
under the
imposed
of death was
sentence
arbitrary
impermissible
or
factor.
other
prejudice,
review,
proportionality
solemn task of
Finally, we undertake the
pool
whereby
proportionality
we
this case to cases
compare
the crime and the defend
regard
similar with
“roughly
which are
Lawson,
ant.”
denied,
includes
pool
Defendant had been
person.
to the
N.C.G.S.
the use or threat of violence
15A-2000(e)(3).
§
engaged
while
committed
The murder was
15A-2000(e)(5).
rape.
of a
N.C.G.S.
the commission
§
THE
COURT
IN
SUPREME
v. ARTIS
heinous,
or cruel. N.C.G.S.
atrocious
especially
The murder was
15A-2000(e)(9).
circumstances
mitigating
of the seven
found one or more
The
Therefore,
purposes
which ones.
specify
but did not
submitted4
review,
seven of the
we must assume that all
proportionality
Stokes, 319
were found.
circumstances
mitigating
1,
Defendant characterizes
or after the commission
during
killed his victim
perpetrator
numerical
then
that a “sheer
argues
sexual assault. He
of a
involving a
pool
in the proportionality
of the cases
breakdown”
yield-
half of such cases
than
sexual assault demonstrates
more
life sentence.
recommendation of a
ed a
inac-
slightly
defendant’s statistics are
Initially we note that
involving
sexual
reveals that
murders
curate. Our research
assaults,
of death
actually
have
recommended sentences
juries
imprisonment
of life
recommending
while
sentences
seven cases5
Holden,
Thus,
we
in State
recognized
in six.6
following:
mitigating
submitted were
4. The
circumstances
(1)
criminality
appreciate
of his conduct
capacity
Artis to
The
of Roscoe
impaired.
requirements of the law was
or to conform his conduct
15A-2000(f)(6).
N.C.G.S. §
(2)
Artis,
defendant,
bordering
mental retardation
on mild
Roscoe
quotient
intelligence
of 67.
with a full scale
(3)
experienced less than normal
illegitimate child and
Roscoe Artis is an
*52
relationships
father.
with his mother and
22,
(4)
employed
gainfully
on October
Roscoe Artis was
(5)
prior good works.
Artis has done
Roscoe
(6)
family.
years
subjected
his
to abuse
Artis in his formative
was
Roscoe
(7)
arising
which
Any
from the evidence
circumstance or circumstances
other
15A-2000(f)(9).
you
mitigating
value. N.C.G.S.
deem to have
513;
125,
Holden,
Zuniga,
State v.
320 N.C.
362 S.E.2d
5. State v.
321 N.C.
denied,
499,
250,
898;
Vereen,
233,
cert.
324 S.E.2d
State v.
312 N.C.
357 S.E.2d
47,
Williams,
1094,
(1985);
301 S.E.2d
v.
308 N.C.
85
526
State
471 U.S.
L.Ed.2d
Smith,
308;
1,
335;
v.
305 N.C.
McDougall,
State
v.
308 N.C.
301 S.E.2d
State
Rook,
201,
691,
264;
167, 362 S.E.2d “juries have tended to return death sentences in murder cases where the sexually- defendant also assaulted his victim.”
In by any so we do not noting, strictly means advocate a analysis. mathematical approach our disparity, Numerical whether defendant, in favor of the in state or favor of the is not dispositive Greene, 1, proportionality on review. State v. 324 376 N.C. S.E.2d (1989); (1985). 669, 430 State v. 312 Young, S.E.2d we Although compare this case to in pool, similar cases our responsibility ultimate is to evaluate each case independently, con- sidering the individual defendant and the nature of the crime or 125, crimes he has committed. State v. Quesinberry, 325 (1989). S.E.2d We rely therefore do not on statistics alone and find it more instructive to with proceed factual comparisons within the of murders category accompanied by sexual assault.
Defendant contends that this
closely
case
resembles the sexual
assault murders in which
has recommended a life sentence.
We disagree. Our review of the record reveals that each such
readily
case is
distinguishable from the case at bar. Two of the
cases,
here,
involving strong mitigation not present
differ with
respect
to the character and condition of the defendant.
In State
1,
273,
v. Temple, 302 N.C.
only
defendant was
years
eighteen
old at the time of the offense and had no significant
Here,
contrast,
history of prior criminal
conduct.
defendant was
forty-three at the time of the offense and had an extensive criminal
crimes,
record which included a number of convictions for violent
them
among
assault on a female with intent
to commit
rape
1957,
1967,
assault on a
female
assault on a female in
incident,
deadly
assault with a
weapon
1975. In the 1974
defendant
attempted
sixteen-year-old
strangle
girl who had
Clark,
refused his sexual advances. In State v.
301 N.C.
S.E.2d
there was considerable evidence that
the defendant
Here,
suffered from schizophrenia.
although
presented
a modicum of his
concerning
borderline mental retarda-
tion, there
absolutely
no evidence that he suffered from a
Powell,
(1980);
State v.
The four cases differ from crime, by specific case with to the nature of the as reflected respect Fincher, 1, 685, In v. 305 S.E.2d jury State 309 N.C. findings. 579, Powell, Franklin, 682, 304 S.E.2d v. State v. 308 N.C. and State 114, 95, solely 299 261 were convicted N.C. S.E.2d the defendants felony theory. murder Here defendant was convicted on upon felony premeditation theories of both murder murder and deliberation indicates finding premeditation deliberation. Prevette, In v. a more cold-blooded and calculated crime. State 148, 159, jury rejected 317 345 S.E.2d specifically N.C. heinous, especially circumstance that the murder was aggravating Here, circumstance, jury indicating or cruel. found that atrocious crime. a more brutal and torturous remotely
We
is not even
similar to
note also that
case
dispropor-
in which we have found the death sentence to be
those
of a sex-
perpetration
tionate.7 None of those cases involved
in
with the murder.
conjunction
ual assault
penalty
with affirmed death
comparison
We now turn to a
whether
crime
determining
for the
purpose
cases
we
approved
to the level of those murders
which
have
“rise[s]
Brown,
review.” State v.
the death sentence upon proportionality
1,
179, 220,
28. We
the death
upheld
320
358 S.E.2d
have
N.C.
has found that
jury
sentence in a number of cases
which
heinous,
The pool
atrocious or cruel.8
especially
the murder was
in which the
penalty
numerous affirmed death
cases
also includes
the defendant had
been convicted
previously
found that
Stokes,
Benson,
318,
(1988);
State v.
319
7. State v.
323
372
517
N.C.
S.E.2d
203,
(1986);
1,
653;
Rogers, 316
State
State v.
[325 the felony Although presence a the use of violence.9 involving which aggravating prevalent two of the circumstances are most conclusive, in death-affirmed cases is not in itself it is one indication arbitrarily imposed. that the sentence was neither excessive nor heinous, The upon atrocious or cruel circumstance reflects the brutali- victim, ty of the crime and the the while suffering prior felony violent circumstance reflects upon defendant’s character recidivist, important as a two factors in our consideration of the nature of the the crime. defendant and we
Again
appropriate
consider as most
for case
case com
parison those murders which also involved sexual assaults. The
case,
brutal,
although
facts
do not demonstrate the level
cases,
of extreme
savagery present
some of the death-affirmed
Williams,
47,
335;
notably
v.
most
State
308
301 S.E.2d
State
N.C.
Smith,
691,
264;
Rook,
v.
305
292
N.C.
S.E.2d
and State v.
304
201,
N.C.
STATE v. road, undressed, rural with her throat slit path partially near a wound to the neck. gunshot three circumstances: aggravating found arrest, murder was committed to avoid lawful murder committed of an during perpetration attempted rape, *55 felony. previously that the defendant had been convicted of a violent circumstances, five recom- Although mitigating jury it found mended sentence death. respect
We find this case to be similar to Holden with strikingly to the number and nature of the and cir- aggravating mitigating similarities, In spite argues cumstances found. of these defendant Holden comparable that his case is not because his crime was While we calculating. agree not as cold and that defendant’s crime calculation, a far lesser and we displayed degree planning level in Holden. nonetheless conclude that it rises to the of the crime significantly This defendant’s crime was more torturous to the victim the nature of the physically psychologically, given both and attack and the fact that the victim was alert and aware prolonged time of attack rather than intoxicated and semi-conscious as was the victim in Holden. In many Zuniga. Zuniga,
This case is also similar in respects the defendant isolated his seven- the evidence tended to show that He year-old grandfather’s raped victim in the woods near her farm. neck, then left her to die the child and stabbed her twice autopsy hidden in an area of thick An revealed some undergrowth. scratches on the child’s neck and of petechial pinpoint a number by strangula- on the neck or chest caused injuries, indicating pressure tion. Death was not immediate and the child would have suffered ag- for a of “some minutes.” The found as the sole period while the circumstance that the murder was committed gravating seven rape. defendant was in the commission of a It found engaged concluded mitigating of the twelve circumstances submitted but circumstance. they outweigh aggravating were insufficient to Zuniga, including type We find the circumstances of and of the victim’s injuries extent of the inflicted and the duration in the case. present to those suffering, roughly comparable be area, forcibly Here defendant attacked the victim an isolated stabbed) (rather woods, her her into the and beat than dragged her, abandoning her raped strangled into submission. He then dirt, body attempt after to conceal it with leaves woods an vines. victim suffered for to five up minutes as she drowned in her own blood.
While the murder young of a child particularly shocks the heavy conscience and was a factor to be weighed against the defend- ant in Zuniga, the fact that this case involved a teenaged victim instead of a child does not alter our conclusion. Other factors in defendant, this case weigh just heavily against in particular the jury’s of two finding aggravating present circumstances not in Zuniga.
We
say
cannot
is
less deserving of the
penalty
death
than the defendants in Holden
Zuniga.
As a
rule,
general
decision of the
in recommending a sentence
of death should be accorded great deference. State v. Quesinberry,
(1989);
Greene,
325 N.C.
State v.
324 N.C.
430;
Goodman,
State v.
298 N.C.
The evidence in this case depicts a dehumanizing crime perpetrated history defendant with a of violent conduct toward teenaged girls. After he rendered victim helpless her striking repeatedly with a stick as thick wrist, as his defendant wrapped his hands around her throat and slowly choked the life out of her he violently her. raped The attack was brutal and relentless. Defendant displayed no remorse or contrition for his act and attempted body conceal the before casually strolling home for nap.
The nature of this crime and this defendant are such that
we cannot conclude that the jury’s recommendation was aberrant.
We hold as a matter of law that the death sentence imposed against
defendant
disproportionate
within the meaning of N.C.G.S.
15A-2000(d)(2).Upon this holding, the death sentence is affirmed.
This Court has no discretion in determining whether a death sentence
Robbins,
should be vacated. State v.
Chief Justice EXUM dissenting. there in Believing that is reversible error both the guilt case, sentencing phases of this I dissent capital and vote for a new trial.
Guilt Phase The majority assumes without it deciding that was error to testimony admit the Billie Ann Woods that defendant had at- tempted sexually to assault her approximately years nine before the event for which defendant was tried. I being believe the admis- sion of the evidence was error because of the remoteness time Jones, of the earlier offense. State v. S.E.2d (1988) (evidence prior sexual improperly assault "admitted in rape prosecution when assault prior years occurred seven before (1986)(evidence Scott, rape); of prior sexual conduct improperly degree admitted first sex offense when prosecution prior years conduct occurred nine before offense). the first sex degree majority holds that it was error to permit defendant to be cross-examined his regarding convictions Yet, for assault on a female 1957 and in 1967. because it characterizes the case against defendant as the ma- overwhelming, jority concludes there is no possibility reasonable that these errors affected the outcome of the trial. I cannot concur with the majori- ty’s assessment against case defendant is so overwhelming there is possibility no reasonable these errors would have affected the outcome of the trial. I would hold these entitle errors to a new trial.
I view do not the case defendant as against overwhelming. The evidence leaves some room for doubt as to whether defendant perpetrated says, the murder. As the majority State relied *57 primarily on an statement inculpatory purportedly made before officers; trial defendant to defendant’s investigating statements and actions to indicate that he was with tending familiar the crime scene; and bloodstains on which defendant’s shirt matched the blood of the victim.
Defendant, offered in though, support considerable evidence of his innocence. in Defendant testified his own behalf arid denied his guilt of the crime. He also offered evidence to cor- tending witnesses, testimony. roborate his One of defendant’s Curtis Blackmon, testified that on the the morning deceased was killed v. ARTIS building. from behind a deceased and defendant come he observed the store, him picked where a car toward the ABC
Defendant walked away. then the victim and another Blackmon saw up and drove club, man, the victim a he had earlier observed with whom testimony as the Defendant’s a area. together behind barn go believed, vic- if how the majority explains opinion, recited in the his of the crime scene knowledge his shirt and tim’s blood on his innocence. could be consistent with In these in the evidence and the conflicts light innocence, is to me reasonable there tending support crimes not been prior that had evidence of defendant’s possibility his trial. a different outcome at might admitted there have been on powerfully negative impact This of evidence has a kind jury contemplates question as the jury vis-a-vis guilty. of whether defendant is guilty equally has been of another crime
Proof that defendant ready of and prompts acceptance to a belief heinous theory guilty charged. he is of the crime prosecution’s juror Its to believe predispose effect is mind effectually to him of the strip and thus prisoner guilty, of innocence. presumption (1984), Thomas, 310 v.
State
McClain,
171, 174, v.
S.E.2d
quoting State
212, 220-21,
Gregory,
S.C.
quoting
in turn
(1939).
Sentencing Phase
my
wrong
argue
In
view it was
prosecutor
sym-
question
of sentence “without
jury that it should decide
may
argument
eighth
an
violate the
danger
that such
pathy.”
Brown,
479 U.S.
interpreted
amendment as it was
California
Brown was a
93 L.Ed.2d
Under consideration
which
capital
instruction for
trials
penalty phase jury
California
sentiment,
“swayed by
conjec-
mere
not to be
admonished
ture,
public
public feeling.”
passion, prejudice,
opinion
sympathy,
In a five
four
the United
Id. at
its decision in a sentencing capital case upon sympathy which is derived from the evidence the case regarding defendant’s itself, background, character or crime it improper but is for jury upon to base its decision mere sympathy or emotion which has no in the grounding evidence. As one federal court of appeals, banc, en sitting put has it:
Mitigating evidence about a defendant’s or background innocence, character is limited to evidence of nor guilt it necessarily does go circumstances of offense. Rather, it can include an appeal compassion, individualized understanding, mercy as the personality of the defendant jury is fleshed out and the is an given opportunity under- stand, to, and to relate the defendant in normal human terms. (10th 1988). 1545, 1555 Brown, Parks v. 860 F.2d Brown Cir. teaches if what is said to avoiding about considerations of sympathy reasonably could cause ignore appropriate circumstances, mitigating then the defendant’s amendment eighth have right all such circumstances considered the sentencer Ramseur, See violated. 106 N.J. A.2d sympathy place While for a criminal has no jury’s guilt, determination of defendant’s does a proper it have
STATE v. ARTIS (1989)] [325 evidence, jury’s deter- mitigating in grounded if the place, imprisonment life or of whether shall suffer mination case, I it example, think his In the instant for die for crime.1 jury sentencing to its for the base appropriate would have been felt any, might if it have part sympathy, in on whatever decision his regarding impaired from the evidence arising toward defendant retardation, relationship parental mental abnormal capacity, course, of family years. jury, his formative The during his abuse case) (and not felt in this may to feel have required is not this kind of evidence is introduced. simply at all because sympathy argument in closing But not to be told either jury ought the as it sympathy court that such counsel or in instructions the evidence, feel, bearing can have no grounded in this kind of might on its sentence determination. Brown, “sympathy were divided on the Before state courts 123, 188, issue, Ramseur, 298, 524 A.2d
instruction” see N.J. decisions, n.71; 277, particularly light in the better reasoned but Brown, precluded jury which of held that instructions jury were en- sentencing sympathy decision on error basing from their State, hearing. sentencing Legare to a new titling defendant 875, (1983); Quinlivan, 81 Wash.2d 302 S.E.2d Ga. Court said: Georgia Supreme 499 P.2d mitigation in all jury charged this was consider Thus mercy for in or offer a basis circumstances which fairness penalty, charge the death the substance imposing not also constitutionally jury charged But the required. which Since sympathy their verdict on for the defendant. base we sympathy, in well evoke mitigation might the evidence charge Because the charges find these in irreconcilable conflict. well limit their con- jury confuse complained might Oliver, acknowledged This as much when it said Court (1983): trial, guilt guilt During phase of a the focus is on versus innocence. consideration, victim, Mercy just prejudice, pity or fear is not a may guilt or inappropriate as to innocence. be basis for a decision an properly prejudicial. Arguments emphasize factors are deemed which these However, sentencing, emphasis is during are different. The considerations and the character of criminal. crime on circumstances omitted.) (Citations N.C. 278
stitutionally required consideration of evidence in mitigation,
hereby disapprove
we
it.
atGa.
Contrary implication sympathy is an appropriate jury’s factor the penal- consideration of (1) ty issue. On it remand should be made clear to the that considerations of are sympathy only to be excluded from innocence; portion relating verdict guilt *60 (2) may that be sympathy properly considered as a factor in the the penalty determination of issue. (citations omitted).
I think do it was reversible error prosecutor for the to be permitted to argue: there,
Look Roscoe Artis over and of Ladies Gentlemen Jury. the You watched him Is a throughout trial. ofman remorse? Is this a man of contrition? You have observed him on the have stand. You observed him here in the sitting courtroom, you for Have now almost two weeks. seen the sign you first of about him? contrition Have seen first of him sign remorse about to show there’s a conscience body working somewhere in that head or on him?
I believe this so to argument egregiously wrong require court trial to intervene its own As on motion. defendant correct- contends, ly very “at the least the prosecutor’s place remarks de- incongruous fendant in the position of unremorseful about appearing a crime that he he not swears that did commit.” For this reason other courts have held similar to be arguments reversible error. Johnson, (1987); Owen S.C. (Tex. State, 1983). S.W.2d Crim. In Johnson the App. prose- cutor argued during phase a trial guilt capital of that defendant trial, had no In shown remorse for his crime. a new granting South Supreme Carolina said: Court COURT IN THE SUPREME v. ARTIS to appellant’s reference improper
We the solicitor’s hold upon comment error was a of remorse was because lack it put the state plead guilty to not right his constitutional equivoca- It an irreconcilable proof. its would be to burden defense, guilty, present not plead tion for the accused to he simultaneously for acts denied commit- remorse express upon an accused’s prosecution .... ting Comments draw adverse remorse invite the an express failure merely appear penitent. the defendant did not inference because argued the prosecutor 360 S.E.2d at In Owen S.C. at trial, “I would submit punishment noncapital during stage somebody, first rehabilitating the first you step say somebody is for him at least probation, step granting remanding In sorry happened.” reversing he for what new Texas Court (presumably sentencing proceeding), for a Appeals said: Criminal it for the urges prosecutor The State that was error sorrow express failure to remorse or appellant’s to comment on ac- place would an Acceptance argument .... of the State’s sorry I am position saying paradoxical cused *61 which I not guilty. a crime of am 656 S.W.2d committed, majority error the relies In that no was concluding (1987). 179, Brown, 1 In Brown v. 320
on State N.C. sym- the that defendant argued defendant’s had to counsel The argument State’s pathized with the deceased’s widow. Further, by in argument defendant’s counsel. answer is an only was that lack of remorse argument Brown defendant’s for to be as a reason permit argued irrelevant factor and to it to the State permitting the sentence is tantamount imposing death by capital not our sentenc- aggravating an factor authorized use “Here, by argument saying: this ing statute. Court answered however, to submit this characteristic attempt the State made no 199, 320 358 S.E.2d at circumstance.” N.C. at aggravating an Brown, majority the 15. The not nor does Court did address answer, argument imper- that such defendant’s contention here and guilty defendant’s missibly right plead compromises and, thereby, throughout proceedings the plea stand process. denies him due
IN THE SUPREME 351 COURT N.C. 278
1325
Finally, if in
sentencing phase
the Court were addressing
unanimity
for the first time the mitigating circumstance
instruction
issue, I
agree
position
would
with defendant’s
these instruc
the eighth
tions violate
amendment
to the federal constitution as
interpreted
Maryland,
amendment was
in Mills v.
486 U.S.
367,
(1988),
100
384
for
in my
L.Ed.2d
the reasons stated
dissenting
1,
(1988),
opinions
McKoy,
in State v.
323
372
12
N.C.
S.E.2d
cert.
—
—,
(1989),
Allen,
granted,
U.S.
Justice
dissenting as to sentencing phase only.
I
concur
guilt
result
reached
as to the
Court
I
phase
only
of defendant’s trial.
dissent
as to the sentencing phase
trial.
the preservation
One of
issues raised
relates
to the applicability of the United
Supreme
States
Court’s decision
(1988),
in Mills v. Maryland, 486 U.S.
Notes
[13] cir capacity statutory mitigating supported impaired tion 15A-2000(f)(6). Defendant presented of N.C.G.S. cumstance men that he is borderline phase during sentencing proceedings evidence, I.Q. retarded, 67. Based upon with a full scale tally