Opposition Brief — Bryan Christopher Bell, Petitioner v. North Carolina
Supreme Court briefNov 24, 2025
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No. 25-5469
IN THE
SUPREME COURT OF THE UNITED STATES
BRYAN CHRISTOPHER BELL and ANTWAUN KYRAL SIMS,
Petitioners,
v.
STATE OF NORTH CAROLINA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NORTH CAROLINA
APPENDIX TO
BRIEF IN OPPOSITION
JEFF JACKSON
ATTORNEY GENERAL
Teresa M. Postell
Special Deputy Attorney General
*Counsel of Record
North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 716-6558
tpostell@ncdoj.gov
APPENDIX TO BRIEF IN OPPOSITION
TABLE OF CONTENTS
A.
Order of the Onslow Superior Court of North Carolina, issued
December 13, 2012 ........................................................................ 1a-54a
B.
Opinion of the Supreme Court of North Carolina, issued
October 7, 2004 .......................................................................... 55a-121a
C.
Opinion of the North Carolina Court of Appeals, issued
November 18, 2003 .................................................................. 122a-144a
D.
Opinion of the North Carolina Court of Appeals, issued
August 7, 2018 ......................................................................... 145a-170a
E.
Amendment to Motion for Appropriate Relief, filed
April 13, 2012 .......................................................................... 171a-177a
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IN THE SUPREME COURT OF NORTH CAROLINA
No. 86A02
FILED: 7 OCTOBER 2004
STATE OF NORTH CAROLINA
v.
BRYAN CHRISTOPHER BELL
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
a judgment imposing a sentence of death entered by Judge Jay D.
Hockenbury on 24 August 2001 in Superior Court, Onslow County,
upon a jury verdict finding defendant guilty of first-degree
murder.
On 27 September 2004, the Supreme Court allowed
defendant’s motion to bypass the Court of Appeals as to his
appeal of additional judgments.
May 2004.
Heard in the Supreme Court 11
Additional issues raised in defendant’s supplemental
brief determined without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
Roy Cooper, Attorney General, by Gail E. Dawson,
Special Deputy Attorney General, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse,
Jr., for defendant-appellant.
LAKE, Chief Justice.
On 2 October 2000, defendant was indicted for the
first-degree murder of Elleze Thornton Kennedy.
On 27 November
2000, defendant was indicted on additional charges of firstdegree kidnapping and burning of personal property.
He was tried
capitally to a jury at the 9 July 2001 Special Criminal Session
of Superior Court, Onslow County, the Honorable Jay D. Hockenbury
56a
-2presiding.
The jury found defendant guilty of first-degree
murder based on malice, premeditation, and deliberation as well
as felony murder and, following a capital sentencing proceeding,
recommended that defendant be sentenced to death.
Hockenbury sentenced defendant accordingly.
Judge
The jury also found
defendant guilty of first-degree kidnapping and burning of
personal property.
Judge Hockenbury sentenced defendant to
consecutive prison terms of 133 months to 169 months for the
kidnapping conviction and 11 to 14 months for the burning of
personal property conviction.
Defendant appeals his conviction
and death sentence for first-degree murder to this Court.
The evidence at trial tended to show that on 3 January
2000, defendant met two friends, Antwaun Sims and Chad Williams,
at a game room in Newton Grove.
At defendant’s request, Williams
brought a BB gun with him to Newton Grove and gave it to
defendant upon arrival at the game room.
After spending some
time at the game room, defendant, Sims, and Williams left for the
Newton Grove traffic circle where they “hung out,” smoked
marijuana, and drank brandy.
Defendant told Sims and Williams
that he wanted to steal a car so that he could leave town, and
Sims said he was “down for whatever.”
At that point, defendant
spotted Elleze Kennedy leaving Hardee’s, and he said, “I want to
rob the lady for her Cadillac.”
The evidence further showed that defendant, Sims, and
Williams followed Kennedy to her nearby home and watched as she
exited her car and turned to lock the door.
Defendant then ran
up to Kennedy, pointed the BB gun at her and said, “Give me your
57a
-3keys.”
Kennedy threw her keys into the yard and began to scream,
at which time, defendant hit her with the gun, knocking her to
the ground.
Sims and Williams found the car keys and then put
Kennedy into the car.
Kennedy bit Williams as he grabbed her,
and Williams punched her in the jaw to make her release his hand.
Defendant sat in the back seat with Kennedy.
Sims drove the car,
and Williams sat in the front passenger seat.
At one point,
Kennedy asked defendant why he was so mean and where he was
taking her.
BB gun.
He responded by hitting Kennedy in the face with the
Kennedy, bleeding badly at that point due to repeated
beatings, laid her head against the door and did not say anything
else.
Defendant instructed Sims to drive to the Bentonville
Battleground and, upon arrival, defendant, Sims, and Williams
pulled Kennedy from the car and placed her in the trunk.
got back in the car and drove toward Benson.
They
Kennedy was
unconscious when placed in the trunk, but she later awoke and
began moving around in the trunk.
Defendant told Sims to turn up
the radio so that he did not have to listen to Kennedy in the
trunk.
The three men then went to the trailer of Mark Snead,
Williams’ cousin.
Snead.
They went inside and smoked marijuana with
The men told Snead that the car was rented and that the
three were traveling to Florida.
Soon thereafter, the three left
Snead’s trailer and went to the trailer of two individuals
referred to as Pop and Giovonni Surles, where Sims used Pop’s
58a
-4phone to call his girlfriend, and then the three left.
Before
leaving the trailer park, Williams got out of the car and walked
back to Snead’s trailer because, as he testified at trial, he did
not wish to go anywhere with Kennedy in the trunk of the car.
Defendant and Sims returned a short time later and told Williams
that they had released Kennedy, after which Williams left with
them.
Defendant, Sims, and Williams made one more stop in
Benson to clean the blood from the backseat of the car.
then drove towards Fayetteville on Interstate 95.
They
Sims stopped
for gas at a truck stop, and defendant looked through Kennedy’s
purse and found four dollars to use towards gas.
While at the
gas station, Williams heard movement in the trunk of the car and
realized Kennedy was still trapped in the trunk.
Williams
confronted defendant with his suspicions, and defendant told
Williams he was “tripping.”
Defendant disposed of the BB gun and
Kennedy’s credit cards by throwing them out of the window along
Interstate 95.
Once in Fayetteville, Sims stopped the car, and
he and defendant went to the trunk.
According to Williams’ trial
testimony, Sims slammed the trunk repeatedly on Kennedy as she
was trying to get out.
Defendant then decided that the group needed to return
to Kennedy’s house in Newton Grove to look for the scope to the
BB gun.
Defendant did not find the gun scope, but he did find
one of Kennedy’s shoes.
He picked it up and put it in the car.
As they were leaving the house, Williams again asked defendant
59a
-5and Sims to release Kennedy.
Defendant told Williams they would
release Kennedy, but they had to go somewhere else to do so.
The trio left Kennedy’s house a second time and drove
the car down a path into a field, parking on a hill at the edge
of the clearing.
trunk.
Sims turned off the headlights and opened the
Williams testified at trial that he could hear Kennedy
moaning.
Williams asked defendant what he was going to do.
Defendant responded, “Man, I ain’t trying to leave no witness.
This lady done seen my face.
witness.”
I ain’t trying to leave no
With that, defendant shut the trunk on Kennedy.
Defendant then got a lighter from Sims and set his coat on fire,
threw the burning coat into the car, and shut the door.
The next morning, defendant sent Sims to check on the
car.
Sims rode his bicycle down to the car and found that the
windows were covered in smoke and Kennedy was dead.
Sims
reported back to defendant, who then called a friend, Ryan
Simmons, to come and pick them up.
Before leaving the area,
defendant had Simmons drive them down to the car.
Sims got out to wipe fingerprints from the car.
Defendant and
Williams stayed
in the car with Simmons and admitted to him that the car was
stolen.
He did not give the details of the prior evening.
Simmons took defendant and Williams to their respective houses to
get some personal items and then dropped all three at Sims’
brother’s home, where they stayed for the next few days.
Kennedy’s car was discovered by Joe Godwin on 4 January
2000.
The car was parked close to Godwin’s property line, and
when he went to investigate, he found that all of the windows
60a
-6were covered over.
At Godwin’s request, his wife called the
sheriff’s department, and a detective discovered Kennedy’s body
upon examination of the car.
An autopsy report concluded that
Kennedy suffered several blunt force trauma injuries to the head
but ultimately died from carbon monoxide poisoning, a direct
result of the fire set by defendant inside of the car.
Defendant, Sims, and Williams were ultimately linked to the
crime.
Williams gave several statements to police and eventually
pled guilty to murder, kidnapping, and theft.
Williams testified
against defendant and Sims in exchange for acknowledgment of his
assistance by the prosecution during his own sentencing
proceeding.
Defendant asserts several assignments of error in his
trial.
He additionally argues that the sentence of death imposed
upon him is disproportionate to the crime.
For the reasons that
follow, we find no prejudicial error in defendant’s trial and
capital sentencing proceeding, nor do we find defendant’s death
sentence disproportionate.
In his first assignment of error, defendant contends
that the trial court violated defendant’s constitutional right to
a jury of his peers by allowing the State to dismiss jurors on
the basis of their race.
The State exercised nine peremptory
challenges to exclude African-American prospective jurors from
the jury in this case.
Defendant argues that the State’s conduct
constituted a pattern of racial discrimination in violation of
defendant’s constitutional rights.
61a
-7The United States Supreme Court addressed this issue in
Batson v. Kentucky and set forth a three-part test to determine
whether the State has impermissibly excluded jurors on the basis
of their race in a given case.
(1986).
476 U.S. 79, 90 L. Ed. 2d 69
The first step requires the defendant to establish a
prima facie case of discrimination.
86-87.
Id. at 94, 90 L. Ed. 2d at
If the trial court determines that such a prima facie
case has been made, the State is then required to offer a
facially valid and race-neutral reason for the peremptory
challenges.
Id. at 97, 90 L. Ed. 2d at 88.
Finally, the trial
court must determine whether the defendant has proven purposeful
discrimination.
Id. at 98, 90 L. Ed. 2d at 88-89.
Generally, when a trial court rules that the defendant
has failed to establish a prima facie case of discrimination,
this Court’s review is limited to a determination of whether the
trial court erred in this respect.
State v. Barden, 356 N.C.
316, 343, 572 S.E.2d 108, 127 (2002), cert. denied, 538 U.S.
1040, 155 L. Ed. 2d 1074 (2003).
However, “‘[o]nce a prosecutor
has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question
of intentional discrimination, the preliminary issue of whether
the defendant had made a prima facie showing becomes moot.’”
State v. Lemons, 348 N.C. 335, 361, 501 S.E.2d 309, 325 (1998)
(quoting Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d
395, 405 (1991)), judgment vacated on other grounds, 527 U.S.
1018, 144 L. Ed. 2d 768 (1999).
Since the State, in the instant
case, did offer race-neutral explanations for each challenge, and
62a
-8the trial court ultimately accepted the State’s reasons as valid
for the exercise of peremptory challenges, “the only issue for us
to determine is whether the trial court correctly concluded that
the prosecutor had not intentionally discriminated.”
Id.
As
this Court has held in this regard, the trial court maintains the
unique ability to assess, first-hand, all the circumstances
relating to the prosecutor’s credibility in each case, and we
will not overturn its determination absent clear error.
This Court has held that the State may use several
general factors to rebut charges of discrimination in the jury
selection process, including evidence that the State accepted
some jurors of the challenged minority race and that the State
did not use all of its peremptory challenges.
See State v.
Smith, 328 N.C. 99, 120-21, 400 S.E.2d 712, 724 (1991).
Eighteen
African-American prospective jurors were examined in this case.
The State exercised peremptory challenges against nine of those.
Two African-American prospective jurors were passed by the State,
and the State only used twenty-four of its thirty-two available
peremptory challenges.
The State also enumerated specific reasons for
exercising peremptory challenges against dismissed jurors each
time defendant lodged an objection based on Batson.
The trial
court found the State’s reasons to be reasonable and valid, and
we agree.
Defendant’s first Batson challenges came when the
State used peremptory challenges to dismiss two African-American
prospective jurors and one white prospective juror.
The State
63a
-9offered valid, race-neutral reasons for the peremptory challenges
of both African-American prospective jurors.
Prospective juror Milford Hayes was excused by the
State because he was strongly opposed to the death penalty.
Mr.
Hayes made his opposition clear from the beginning of the jury
selection process and continued to state his opinions during jury
voir dire.
He said, in response to a question, that he would be
unable to impose a death sentence upon anyone, even Jeffrey
Dahmer.
Such a strong and absolute opposition to the death
penalty is certainly a valid, race-neutral reason for the State
to exercise a peremptory challenge.
Prospective juror Mary Shird-Malone was excused by the
State because her foster child was seeking psychiatric treatment
due to relationship problems with his natural parents.
The State
expected defendant to put on evidence of problems similar to
those of Ms. Shird-Malone’s child, and the prosecutor was
concerned that Ms. Shird-Malone’s personal family situation might
make her overly sympathetic to defendant.
Concern for undue
sympathy towards defendant is a valid and race-neutral reason to
exercise a peremptory challenge.
Defendant contends that
similarly situated jurors were treated differently based upon a
difference in race.
Defendant asserts that Connie Phillips, a
juror of a different race, was similarly situated because she was
in a business where she worked with and around psychologists on a
daily basis.
However, Ms. Phillips stated that her opinion of
psychiatrists and psychologists depended upon the individual, and
she was not seeking treatment or counseling of any kind.
64a
-10Furthermore, there were factors weighing in favor of Ms. Phillips
that were not applicable to Ms. Shird-Malone.
Ms. Phillips was
married to a twenty-six-year law-enforcement veteran, and she had
no objections to the death penalty.
All of these factors go to
show that Ms. Shird-Malone and Ms. Phillips were not, in fact,
similarly situated individuals.
Likewise, there were other
prospective jurors who had minor connections to the psychiatric
field, but none were such that they would cause the same concerns
expressed by the State regarding Ms. Shird-Malone.
No other
prospective juror was in a similar situation that would create
the same concern as that expressed by the State regarding Ms.
Shird-Malone.
The State’s concerns were valid, race-neutral, and
specific to Ms. Shird-Malone.
The State later exercised a peremptory challenge to
excuse prospective juror La Star Williams, and defendant again
objected based on Batson.
The State offered several race-neutral
reasons for exercising a peremptory challenge to excuse Ms.
Williams.
Ms. Williams was pregnant, and although she was
starting to feel better, she had been very sick.
The State felt
that Ms. Williams may find it difficult to vote for the death
penalty when she was carrying a life of her own.
Additionally,
Ms. Williams seemed unhappy to be there and inattentive at times.
She also had a brother who had recently been prosecuted for
stealing by the same district attorney’s office prosecuting
defendant’s case.
All of these factors, taken together, serve as
valid, race-neutral reasons for dismissing Ms. Williams.
Defendant again contends that similarly situated prospective
65a
-11jurors were treated differently based only on their race.
One
prospective juror’s father had been convicted of “price fixing”
years before.
Another prospective juror’s stepson, with whom he
had no relationship, was charged with first-degree rape.
Defendant claims that because these two prospective jurors had
family members with legal troubles, they too should have been
dismissed but were not because of their race.
However, these two
jurors had only one factor in common with Ms. Williams.
There
were a number of reasons why the State chose to exercise a
peremptory challenge against Ms. Williams.
While each of the
factors may or may not have been sufficient individually, it was
the combination that led the State to act as it did.
Defendant
has failed to establish disparate treatment because the same
combination of factors was not present in the other two
prospective jurors.
The State also exercised a peremptory challenge to
excuse prospective juror Yvonne Midgette.
dismissed by the State for several reasons.
Ms. Midgette was
First, Ms. Midgette
ran a prison ministry and dealt with violent criminals on a
regular basis.
The State was concerned that Ms. Midgette might
find it difficult to sentence a man to death considering her
prison ministry work.
Other factors leading the State to excuse
Ms. Midgette included her position as chairperson of Alcoholics
Anonymous and the personal problems she was having with her
daughter.
The State felt that these factors might cause Ms.
Midgette to be unduly sympathetic to defendant during the
sentencing phase.
The State’s reasons for exercising a
66a
-12peremptory challenge to excuse Ms. Midgette were valid and raceneutral.
Defendant next made a Batson objection to the State’s
peremptory challenge of prospective juror Viola Denise Morrow.
Ms. Morrow suffers from rheumatoid arthritis.
The State was
concerned about having Ms. Morrow serve as a juror because she
could, on any given day, suffer so much pain that she would be
unable to participate in the proceedings.
This was a valid and
race-neutral reason to excuse Ms. Morrow.
The State exercised a peremptory challenge to excuse
prospective juror Diana Roach over defendant’s Batson objection.
The State exercised a peremptory challenge against Ms. Roach
because she did not believe in the death penalty.
Ms. Roach
testified that she was adverse to the death penalty and had been
so opposed for her entire life.
The State’s reason was valid and
race-neutral.
The State exercised a peremptory challenge to excuse
prospective juror June Leaks based on similar reasoning.
The
State was concerned about Ms. Leaks’ ability to recommend death
because as soon as the State brought up the subject, Ms. Leaks
began darting her eyes, twisting in her chair, and hesitating in
her answers.
Defendant contends that a similarly situated juror
was passed by the State and that the only difference between the
two was their race.
Defendant claims that prospective juror
Merilyn Thomasson was passed by the State even though she, like
Ms. Leaks, seemed uncomfortable with the death penalty.
However,
Ms. Thomasson testified during voir dire that she was sure she
67a
-13could consider the death penalty and recommend it, if proper.
She also had previously served on a criminal jury.
These factors
distinguish Ms. Leaks from Ms. Thomasson, and the State’s reason
for excusing Ms. Leaks is valid and race-neutral.
The State used a peremptory challenge to excuse
prospective juror Mary Adams, over defendant’s Batson objection.
The State explained that Ms. Adams was excused based on several
factors.
needs.
Ms. Adams was a homemaker with a child with special
The State was concerned that Ms. Adams might be more
lenient or sympathetic towards defendant for these reasons.
Further, Ms. Adams had been charged with failure to pay state
sales tax in 1998.
While the charge was ultimately dropped, the
crime was one of fraud or dishonesty which caused the State some
concern.
Defendant contends that similarly situated jurors were
treated differently based upon their race.
As support for this
contention, defendant points to two other jurors with previous
experiences in the criminal justice system who were passed by the
State.
While there were other jurors who had earlier encounters
with the criminal justice system, no juror had experienced all of
the circumstances that caused the State to dismiss Ms. Adams.
The State did not engage in disparate treatment, and the reasons
for the State’s peremptory challenge of Ms. Adams were valid and
race-neutral.
The State exercised a ninth peremptory challenge to
excuse prospective juror Donald Morgan.
Adams, had a criminal record.
Mr. Morgan, like Ms.
He also had a child with substance
abuse issues, and he worked in the mental health field.
The
68a
-14factors leading the State to exercise a peremptory challenge
against Mr. Morgan were valid and race-neutral.
The State provided valid and race-neutral reasons for
exercising each peremptory challenge objected to on the basis of
Batson.
The trial court properly determined, after each Batson
objection, that the State did not discriminate against AfricanAmerican prospective jurors on the basis of their race.
Defendant’s assignment of error is without merit.
In his second assignment of error, defendant contends
that the trial court violated defendant’s right to a fair trial
and due process of law by joining the trials of defendant and
codefendant Antwaun Sims.
Prior to trial, the State made a
motion to join defendant and codefendant’s cases for trial.
Defendant objected to joinder, but the trial court granted the
State’s motion.
Several months later, and still before trial,
defendant made a motion to sever his case from that of his
codefendant.
The trial court, finding no change in circumstances
making it necessary to sever the cases, denied defendant’s
motion.
Defendant renewed his motion several more times
throughout the trial, and the trial court repeatedly denied it.
Defendant contends that the trial court erred by denying
defendant’s motions to sever and that, as a result, he received
an unfair trial.
We disagree.
Joinder is appropriate when (1) each defendant is
charged with accountability for each offense; or (2) the offenses
charged were (a) part of a common scheme, (b) part of the same
transaction, or (c) so closely connected in time, place, and
69a
-15occasion that it would be difficult to separate proof of one
charge from proof of the others.
(2003).
N.C.G.S. § 15A-926(b)(2)
“‘The propriety of joinder depends upon the
circumstances of each case and is within the sound discretion of
the trial judge.’”
State v. Golphin, 352 N.C. 364, 399, 533
S.E.2d 168, 195 (2000) (quoting State v. Pickens, 335 N.C. 717,
724, 440 S.E.2d 552, 556 (1994)), cert. denied, 532 U.S. 931, 149
L. Ed. 2d 305 (2001).
The trial court’s decision to consolidate
cases for trial will not be disturbed on appeal absent a showing
that joinder resulted in defendant receiving an unfair trial.
Id.
Here, defendant and codefendant Sims were each charged
with accountability for first-degree murder, first-degree
kidnapping, and burning of personal property.
Additionally,
these charges arose from the same series of events involving the
same victim and witnesses, and the evidence tended to indicate a
common scheme.
There was ample reason for the trial court to
decide to join the cases for trial.
Defendant contends that he received an unfair trial as
a result of the joinder because inflammatory evidence was
admitted against codefendant Sims which likely prejudiced
defendant’s case.
At trial, the State introduced evidence that a
cloth containing semen was discovered in the victim’s car.
The
State’s DNA evidence connected the cloth to codefendant Sims.
Both defendant and codefendant Sims argued that this evidence was
prejudicial because the jury could use the evidence to infer a
sexual assault.
The trial court allowed the evidence and
70a
-16instructed the jury that it could consider the evidence for
purposes of identification and corroboration, but it could not
consider the evidence as proof of a sexual assault on the victim.
Defendant contends that, despite the trial court’s instruction,
the evidence could have inflamed the jury, thereby prejudicing
defendant’s case.
However, the State’s main witness, Chad
Williams, testified that no sexual assault occurred, and the
medical examiner testified that there was no evidence of a sexual
assault.
This testimony, coupled with the trial court’s limiting
instruction, was sufficient to safeguard against the jury’s
misuse of the State’s evidence against defendant.
Defendant additionally contends that he received an
unfair trial as a result of joinder because codefendant Sims
exercised a peremptory challenge against a prospective juror
defendant would have chosen.
The trial court conducted jury
selection by having one defendant question all jurors passed by
the State and exercise all of his peremptory challenges before
the other defendant examined the jurors.
Codefendant Sims was
given the first opportunity to question the prospective jurors
and, despite defendant’s vocal approval of a particular juror,
codefendant Sims exercised a peremptory challenge to excuse that
prospective juror from the panel.
The trial court’s method of jury selection in this
joint trial did not prejudice defendant.
The very nature of a
joint trial requires that each defendant be entitled to exercise
his peremptory challenges separate and independent of his
codefendant.
Regardless of the method, each defendant would have
71a
-17the opportunity to question and excuse jurors from service.
If
elimination of a desirable juror were a reason for severance,
joinder would never occur.
Codefendant Sims’ exercise of a
peremptory challenge during jury selection to excuse a
prospective juror defendant wanted did not result in an unfair
trial for defendant and did not require severance.
Defendant further contends that codefendant Sims’ alibi
evidence and jury arguments prejudiced defendant, requiring
severance and separate trials.
Sims offered witness testimony
that he was not present when Ms. Kennedy was kidnapped or
assaulted.
Codefendant Sims argued to the jury that defendant
and Chad Williams were the true culprits in this crime.
Defendant argues that Sims’ trial tactics prejudiced him and
required severance and separate trials.
However, there was ample
evidence presented at trial to implicate both defendant and
codefendant Sims in the murder of Ms. Kennedy.
Codefendant Sims’
witnesses did nothing to further incriminate defendant.
In fact,
defendant used some of codefendant Sims’ witnesses to advance his
own case.
The jury apparently did not find codefendant Sims’
evidence persuasive, because he was convicted of the charges
against him as well.
The jury was picked fairly, and a solid
case was presented against both defendant and codefendant Sims.
Joinder in this case was proper and did not cause defendant an
unfair trial.
This assignment of error is overruled.
Defendant’s third assignment of error is that the trial
court erred by placing certain prospective jurors in specific
jury panels, thus violating the requirement for random jury
72a
-18selection.
Section 15A-1214 of the North Carolina General
Statutes states in part that “[t]he clerk, under the supervision
of the presiding judge, must call jurors from the panel by a
system of random selection which precludes advance knowledge of
the identity of the next juror to be called.”
1214(a) (2003).
N.C.G.S. § 15A-
Here, the clerk randomly called prospective
jurors to be assigned to eight different panels.
However, three
prospective jurors were left unassigned to panels.
Defendant
contends that the trial court violated the randomness requirement
of N.C.G.S. § 15A-1214 by assigning those three remaining
prospective jurors to the last jury panel, thus requiring a new
trial.
We hold that defendant failed to properly preserve this
issue for our review.
A defendant’s challenge to a jury panel must be made in
accordance with the requirements of N.C.G.S. § 15A-1211(c), which
states that a challenge to a jury panel:
(1)
May be made only on the ground that the
jurors were not selected or drawn
according to law.
(2)
Must be in writing.
(3)
Must specify the facts constituting the
ground of challenge.
(4)
Must be made and decided before any
juror is examined.
N.C.G.S. § 15A-1211(c) (2003).
Here, defendant never made a
challenge to the jury selection process.
In fact, defendant
requested that two of the three remaining jurors, about whom he
now objects, be assigned to the last panel.
At the conclusion of
jury selection, defendant was asked if he approved of the jury
73a
-19panel.
Defendant answered affirmatively, again without objection
to the jury selection process.
Because defendant failed to
challenge the jury selection process in accordance with N.C.G.S.
§ 15A-1211(c), he now cannot request appellate review.
See e.g.,
State v. Jones, 358 N.C. 330, 337-38, 595 S.E.2d 124, 130 (2004);
State v. Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856, cert.
denied, 534 U.S. 965, 151 L. Ed. 2d 286 (2001); State v. Atkins,
349 N.C. 62, 102-03, 505 S.E.2d 97, 122 (1998), cert. denied, 526
U.S. 1147, 143 L. Ed. 2d 1036 (1999).
Defendant’s assignment of
error is overruled.
Defendant’s fourth assignment of error is that the
trial court erred by allowing the prosecutor to make certain
characterizations of defendant during the State’s closing
argument.
The prosecutor began his guilt-phase closing argument
by saying:
He who hunts with the pack is
responsible for the kill. Each of you [has]
seen those nature shows: Discovery Channel,
Animal Planet. You’ve seen where a pack of
wild dogs or hyenas in a group attack a herd
of wildebeests, and they do it as a group.
When they take that wildebeest, one of
them might be the one that chases after it
and grabs the leg of the wildebeest, slows
them down. Another one might be out fending
off the wildebeests that are coming and
making their counterattacks. You have
another that will be the one that actually
grasps its jaws about the throat of the
wildebeest, ultimately, crushing the throat
and taking the very life out of that animal.
He who hunts with the pack is
responsible for the kill. Each and every one
of those animals are responsible for that
kill. Each and every one of those animals
will feast on the spoils of that kill. He
74a
-20who hunts with the pack is responsible for
the kill.
Just like the predators of the African
plane [sic], Chad Williams, Antwaun Sims, and
Christopher Bell stalked their prey. They
chased after their pray [sic]. They attacked
their prey. Ultimately, they fell [sic]
their prey.
Defendant contends that the prosecutor’s characterizations were
abusive and improper, in violation of N.C.G.S. § 15A-1230(a).
We
disagree.
“Counsel are afforded wide latitude in arguing hotly
contested cases, and the scope of this latitude lies within the
sound discretion of the trial court.”
State v. Gregory, 340 N.C.
365, 424, 459 S.E.2d 638, 672 (1995), cert. denied, 517 U.S.
1108, 134 L. Ed. 2d 478 (1996).
A prosecutor’s arguments are not
to be reviewed in isolation; rather, consideration must be given
to the context of the remarks and to the overall factual
circumstances.
State v. Moseley, 338 N.C. 1, 50, 449 S.E.2d 412,
442 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d 738
(1995).
Looking at the prosecutor’s statements in context, it
is clear that the prosecutor employed the use of an analogy to
aid in explaining a complex legal theory.
Defendant and
codefendant Sims were prosecuted on the theory that they “acted
in concert” with Chad Williams to steal the victim’s car, kidnap
the victim, and eventually murder the victim.
The statement, “he
who hunts with the pack is responsible for the kill” is a passage
that serves to illustrate for juries the theory of acting in
75a
-21concert.
See State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765,
770 (1970).
Here, the prosecutor built upon the basic premise that
“he who hunts with the pack is responsible for the kill.”
The
prosecutor created a clear representation of the “pack mentality”
for the jury by describing how animals hunt their prey.
Reading
the text of the prosecutor’s argument in its entirety, it is
clear that the prosecutor was using an analogy to explain the
theory of acting in concert for the jury.
The prosecution even
went so far as to directly link the analogy to the legal
principle, stating, “[h]e who hunts with the pack is responsible
for the kill.
term.”
It’s called acting in concert.
That’s a legal
Given that the prosecution clearly linked its analogy to
the legal theory it was meant to represent, we cannot now say
that the trial court erred by allowing the prosecution to make
its argument.
The prosecutor also stated during closing arguments,
“[i]f you are going to try the devil, you have to go to hell to
get your witnesses.”
Defendant contends that this also was an
improper and inflammatory characterization.
Again, we disagree.
The prosecutor made this statement in response to a
direct attack by defendant on the credibility of the State’s star
witness, Chad Williams.
The prosecution defended Williams’
credibility to the extent that one can defend the credibility of
a participant in the crime:
I want to talk to you a little bit about
Chad Williams. One of the things you may
wonder--they made a big deal about was why
did you put Chad on? Why call Chad as a
76a
-22witness? Think about it. Our job and what
we attempted to do is to put on all the
evidence before you to give you what happened
that night, put it all on. That includes to
put on what happened that night.
Now, if the physical evidence tells you
things--we wanted to flesh out what happened
that night, flesh out the details. The
physical evidence doesn’t talk and Ms.
Kennedy can’t tell us. We don’t have her to
call up here and say, Ms. Kennedy, what did
these boys do to you? What did they do to
you? She is just standing there in the yard,
getting out of her car, and these young men
come up and attack her. We don’t have her to
tell the story.
What we do have is Chad Williams. We
put him on, and the defense attorneys, How
dare you call someone like that. How dare
you call somebody who is a liar, who is a
convicted murderer who says all these things.
How dare you do that.
Well, I can tell you if there would have
been a Baptist or Methodist preacher that was
riding with these guys that night and could
tell you what happened that night and live to
tell it, I would be the first one to call
him. I would put him up here. We don’t have
that luxury.
Over defendant’s objection, the prosecutor went on to say, “[i]f
you are going to try the devil, you have to go to hell to get
your witnesses.”
We have previously considered and approved use of the
phrase to which defendant objects.
State v. Willis, 332 N.C.
151, 171, 420 S.E.2d 158, 167 (1992).
In Willis, the State used
the phrase to illustrate the type of witnesses available to the
State.
Id.
Here, just as in Willis, the prosecutor’s statement
was meant merely to illustrate the type of witness available in
this case.
Chad Williams was a participant in the crime, not an
innocent person.
In this case, Williams’ credibility is not
77a
-23based on his character.
It is based upon his participation in
the events to which he testified.
After reviewing each of the prosecutor’s statements in
context, we conclude that neither statement amounted to improper
characterization or name calling.
The prosecution, in its
zealous representation of the State, simply used vivid analogies
to illustrate points for the jury.
The trial court did not err
in allowing the prosecution’s statements.
This assignment of
error is overruled.
Defendant’s fifth assignment of error is that the trial
court erred by telling the jury that its decision would be
reviewed by an appellate court.
Defendant contends that the
trial court’s statements to the jury insinuated that any error
the jury made would be corrected by a higher court, thereby
reducing the jury’s feeling of responsibility for its decision.
Defendant did not object to the trial court’s jury charge at the
time.
Rule 10(b)(2) of the North Carolina Rules of Appellate
Procedure provides:
A party may not assign as error any portion
of the jury charge or omission therefrom
unless he objects thereto before the jury
retires to consider its verdict, stating
distinctly that to which he objects and the
grounds of his objection; provided, that
opportunity was given to the party to make
the objection out of the hearing of the jury,
and, on request of any party, out of the
presence of the jury.
N.C. R. App. P. 10(b)(2).
Because defendant did not object to
the trial court’s statements at the time they were made, we are
78a
-24now limited to conducting a plain error review.
State v. Odom,
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
[T]he plain error rule . . . is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,”
or “where [the error] is grave error which
amounts to a denial of a fundamental right of
the accused,” or the error has “‘resulted in
a miscarriage of justice or in the denial to
appellant of a fair trial’” or where the
error is such as to “seriously affect the
fairness, integrity or public reputation of
judicial proceedings” or where it can be
fairly said “the instructional mistake had a
probable impact on the jury's finding that
the defendant was guilty.”
Id. at 660, 300 S.E.2d at 378 (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S.
1018, 74 L. Ed. 2d 513 (1982)) (internal citations omitted).
“The adoption of the ‘plain error’ rule does not mean that every
failure to give a proper instruction mandates reversal regardless
of the defendant’s failure to object at trial.
To hold so would
negate Rule 10(b)(2) which is not the intent or purpose of the
‘plain error’ rule.”
Id. (citing United States v. Ostendorff,
371 F.2d 729 (4th Cir.), cert. denied, 386 U.S. 982, 18 L. Ed. 2d
229 (1967)).
“[E]ven when the ‘plain error’ rule is applied,
‘[i]t is the rare case in which an improper instruction will
justify reversal of a criminal conviction when no objection has
been made in the trial court.’”
Id. at 660-61, 300 S.E.2d at 378
(quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203,
212 (1977)).
“In deciding whether a defect in the jury
instruction constitutes ‘plain error,’ the appellate court must
79a
-25examine the entire record and determine if the instructional
error had a probable impact on the jury’s finding of guilt.”
Id.
at 661, 300 S.E.2d at 378-79 (citing United States v. Jackson,
569 F. 2d 1003 (7th Cir.), cert. denied, 437 U.S. 907, 57 L. Ed.
2d 1137 (1978)).
Here, the statements made by the trial court cannot
even be considered instructions to the jury.
The trial court
made three statements of which defendant now complains.
The
first statement was made upon first meeting with the jurors.
Upon review of Judge Hockenbury’s opening statements in context,
it is clear that the trial court’s statements were merely
introductory in nature and were not meant to influence or
instruct the jury in any way.
Judge Hockenbury introduced
himself to the jury and then proceeded to introduce court
personnel who would be in the courtroom during jury selection and
the trial.
In making its introductions, the trial court said the
following:
Let me introduce some of the court
personnel that you will see up here who will
be working during this term of court. The
Clerk of Superior Court here in Onslow County
is The Honorable Ed Cole, and the courtroom
clerk here to my right is Lisa Edwards. She
will be the clerk during your jury selection
process during this term. It’s a pleasure to
have her here with us. She will, of course,
assist the Court with all the administrative
matters that the Court has to do when they
hold superior court.
The court reporter here to my left is
Briana Nesbit. Her job is to take down and
transcribe everything that is said here in
the courtroom. As you could see when we had
the conference here at the bench, Mrs. Nesbit
came over with her machine and transcribed
everything that was said here. This is very
80a
-26important because this court is the highest
level trial court of the State of North
Carolina. The decisions in this court get
appealed to the North Carolina Court of
Appeals or the North Carolina Supreme Court,
as the case may be. Everything needs to get
transcribed for that purpose.
Defendant now objects to the portion of Judge
Hockenbury’s statement referencing appeal of decisions to the
North Carolina Court of Appeals and to this Court.
However,
reviewing this statement in context, it is clear that he merely
wished to explain the function of the court reporter to the jury.
We do not view this statement as a jury instruction, and
therefore, it does not fall within the purview of plain error.
The second statement to which defendant now objects was
made during the jury selection process.
The trial court was
asking a prospective juror questions about her ability to
consider the death penalty as a punishment.
The prospective
juror responded by nodding her head, and the trial court informed
the juror that she should speak audibly because the court
reporter was recording responses “for appellate purposes.”
The
trial court’s statement did not constitute a jury instruction and
thus does not fall within the purview of plain error.
The third statement to which defendant now objects
occurred during a break in trial proceedings when the trial court
took a moment to recognize “National Court Reporter Day.”
The
trial court took the opportunity to explain the importance of
court reporters in honor of the special day:
Also, this was a day today for a
ceremony for Briana Nesbit. It’s National
Court Reporter Day, August 3, 2001. We had a
ceremony honoring her for the good job that
81a
-27she does for the superior court. There
wouldn’t be any Supreme Court, because this
is the highest level trial court, unless we
had a court reporter transcribing. That’s
how integral they are to the judicial
process.
Again, the trial court’s statements did not constitute jury
instructions and thus do not fall within the purview of plain
error.
Because none of the trial court’s statements regarding
appellate review were made for the purpose of instructing the
jury as to its role in deciding defendant’s case, we decline to
consider the merits of defendant’s argument.
This assignment of
error is overruled.
Defendant’s sixth assignment of error is that the trial
court erred by failing to dismiss the first-degree kidnapping
charge against defendant.
Defendant contends that the State
presented insufficient evidence to convict defendant of firstdegree kidnapping under any of the theories submitted, and
therefore, the trial court should have dismissed the charge.
We
disagree.
When ruling on a motion to dismiss, the trial court
must determine whether the prosecution has presented “substantial
evidence of each essential element of the crime.”
State v. Call,
349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998). “‘Substantial
evidence is that amount of “relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.”’”
State
v. Williams, 355 N.C. 501, 579, 565 S.E.2d 609, 654 (2002)
(quoting State v. Armstrong, 345 N.C. 161, 165, 478 S.E.2d 194,
196 (1996)), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808
(2003) (internal citation omitted).
In making its decision, the
82a
-28trial court must view the evidence in the light most favorable to
the State.
State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77
(2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).
Kidnapping is the unlawful confinement, restraint, or
removal of a person from one place to another for the purpose of:
(1) holding that person for a ransom or as a hostage, (2)
facilitating the commission of a felony or facilitating flight of
any person following the commission of a felony, (3) doing
serious bodily harm to or terrorizing the person, or (4) holding
that person in involuntary servitude.
(2003).
N.C.G.S. § 14-39(a)
Kidnapping is considered to be in the first-degree when
the kidnapped person is not released in a safe place or is
seriously injured or sexually assaulted during the commission of
the kidnapping.
N.C.G.S. § 14-39(b).
Defendant was indicted for first-degree kidnapping on
the basis that he confined, restrained, or removed the victim to
facilitate felonious larceny of a motor vehicle, burning of
personal property, and assault with a deadly weapon,1 resulting
in serious injury to the victim.
Defendant was also indicted for
first-degree kidnapping on the basis that he confined,
restrained, or removed the victim for the purpose of doing
serious bodily harm to or terrorizing the victim, resulting in
serious injury to the victim.
1
The State presented sufficient
First-degree murder was also included as an underlying
felony in the first-degree kidnapping indictment. The State did
not pursue this theory, and the jury was not instructed to
consider it.
83a
-29evidence at trial of each of these alternative theories of firstdegree kidnapping in order to survive a motion to dismiss.
Substantial evidence was presented by the State that
defendant intended to steal the victim’s car and that he
kidnapped the victim to facilitate the theft.
Chad Williams
testified that defendant stated he wanted to steal a car so that
he could leave town.
Williams also testified that when defendant
spotted the victim getting into her car, defendant said, “I want
to rob the lady for her Cadillac.”
Williams testified that the
three approached the victim in her driveway, and defendant
pointed a gun at her and demanded the keys to the vehicle.
victim threw the keys and began to scream.
The
At that point,
defendant hit the victim with the gun and ordered Williams and
Sims to place the victim in the car.
Defendant’s action in
confining the victim was clearly meant to facilitate the larceny
of the car.
The victim was screaming, and defendant acted so as
to prevent the victim from calling attention to the crime.
Substantial evidence also was presented that defendant
continued to confine the victim in order to facilitate his
repeated assaults upon her with a deadly weapon.
The evidence
presented at trial indicated that defendant got in the backseat
with the victim upon initially stealing the car.
According to
testimony, defendant repeatedly hit the victim in her face with
the gun until she quit struggling and lay back quietly against
the door.
Defendant then had Sims stop the car, and the three
confined the victim to the trunk of her car.
The State’s
evidence at trial indicated that defendant continued to confine
84a
-30the victim in the back seat and in the trunk in order to
facilitate the larceny of her vehicle and defendant’s continued
assaults upon the victim.
In addition, substantial evidence was presented that
defendant confined the victim in order to facilitate the burning
of her personal property.
The three eventually drove the car to
a secluded area and opened the trunk to check on the victim.
Upon noticing that the victim was still alive, defendant closed
the trunk, set fire to his coat, and threw it in the car.
Defendant’s actions in continuing to confine the victim
facilitated the burning of the car.
While it may have been unnecessary to confine,
restrain, or remove the victim in order to accomplish any of the
defendant’s crimes, substantial evidence was presented that
defendant did, in fact, make the decision to confine, restrain,
and remove the victim in order to facilitate larceny of a motor
vehicle, assault with a deadly weapon, and burning of personal
property.
Substantial evidence also was presented that
defendant’s actions were meant to terrorize the victim.
Defendant beat the victim, yelled at her, and confined her to the
trunk of her car for hours.
Defendant’s actions resulted in
serious injury, and ultimately death, to the victim.
Therefore,
each element of first-degree kidnapping was established.
The
evidence presented by the State was sufficient to submit each of
these alternative theories of first-degree kidnapping to the
jury.
This assignment of error is overruled.
85a
-31Defendant’s seventh assignment of error is that the
trial court erred in allowing a prior statement of witness Chad
Williams into evidence for the purpose of corroborating his trial
testimony.
Defendant contends that the prior statement was
different from Williams’ trial testimony and, therefore, not
corroborative.
However, defendant failed to object at trial or
properly preserve this issue for appellate review.
Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure states that “[i]n order to preserve a question for
appellate review, a party must have presented to the trial court
a timely request, objection or motion, stating the specific
grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.”
App. P. 10(b)(1).
N.C. R.
In this case, defendant did not object to the
testimony of Agent Jay Tilley regarding various prior statements
made by the State’s witness, Chad Williams.
Codefendant Sims
made an objection to the testimony, arguing that it was
repetitive and noncorroborative.
Defendant never separately
objected or joined in codefendant Sims’ objection, thereby
waiving his right to appellate review.
Defendant has further waived his opportunity for plain
error review of this issue.
Rule 10(c)(4) of the North Carolina
Rules of Appellate Procedure requires that an assignment of error
be “specifically and distinctly contended to amount to plain
error.”
N.C. R. App. P. 10(c)(4).
specifically assert plain error.
Defendant failed to
He therefore failed to properly
86a
-32preserve this issue for appellate review.
This assignment of
error is overruled.
Defendant’s eighth assignment of error is that the
trial court erred in submitting the charges of first-degree
murder and first-degree kidnapping based on the victim having
been seriously injured because the two charges together violate
double jeopardy principles.
Defendant failed to object to
submission of these charges at trial, and he has therefore failed
to properly preserve this issue for appellate review.
“It is well settled that an error, even one of
constitutional magnitude, that defendant does not bring to the
trial court’s attention is waived and will not be considered on
appeal.”
State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39
(2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
Here, not only did defendant fail to raise the issue at trial, he
failed to properly raise double jeopardy in his assignments of
error.
Defendant refers to the following assignment of error as
the basis for his double-jeopardy argument:
34. The trial court committed
reversible or, in the alternative, plain
error in overruling defendant’s objection to
an instruction on kidnapping for the purpose
of committing an assault with a deadly weapon
inflicting serious injury, as this
instruction was not supported by the evidence
and the applicable legal authorities, thereby
denying defendant his federal and state
constitutional rights to a fair trial, due
process of law, equal protection of the law,
and freedom from cruel and unusual
punishment.
This assignment of error makes no reference to double jeopardy or
submission of a first-degree murder charge.
The transcript pages
87a
-33cited, likewise, do not reference double jeopardy.
“Our scope of
appellate review is limited to those issues set out in the record
on appeal.”
State v. Hamilton, 351 N.C. 14, 22, 519 S.E.2d 514,
519 (1999), cert. denied, 529 U.S. 1102, 146 L. Ed. 2d 783
(2000).
Given that defendant failed to raise double jeopardy at
trial, and his assignment of error makes no reference to the
issue, he has not properly preserved the issue for our review.
This assignment of error is overruled.
Defendant’s ninth assignment of error is that the trial
court erred in instructing the jury and submitting a verdict form
which did not require the jury to be unanimous as to the purpose
for which the victim was kidnapped.
We note at the outset that
it is unclear whether defendant objected to the kidnapping
instruction at the trial level on this particular basis as
required by Rule 10(b)(1).
However, even if defendant properly
preserved this issue for appellate review, we conclude there was
no error.
The trial court instructed the jury as to first-degree
kidnapping, in accord with the pattern jury instructions, as
follows:
The elements of first-degree kidnapping
under the theory of facilitating a felony or
inflicting serious injury are:
First, that the defendant, or someone
with whom he was acting in concert,
unlawfully confined a person, Elleze Kennedy,
that is, imprisoned her within a given area
or restrained a person, that is, restricted
her freedom of movement, or removed a person
from one place to another.
88a
-34Second, that the person, Elleze Kennedy,
did not consent to this confinement or
restraint or removal.
Third, that the defendant, or someone
with whom he was acting in concert, confined
or restrained or removed that person for the
purpose of facilitating the defendant’s
commission, or the commission by someone with
whom he was acting in concert, of felonious
larceny of a vehicle, or burning of personal
property, or assault with a deadly weapon
inflicting serious injury, or for the purpose
of doing serious bodily injury to that
person.
Similar instructions were given when the trial court instructed
the jury on kidnapping as an underlying felony to support a
conviction for felony murder.
Defendant contends that the trial
court’s disjunctive instructions were fatally ambiguous because
the jury could have convicted defendant without a unanimous
decision that defendant confined, restrained, or removed the
victim for the purpose of committing a specific crime.
We
disagree.
Two lines of cases have developed regarding the use of
disjunctive jury instructions.
State v. Diaz stands for the
proposition that
a disjunctive instruction, which allows the
jury to find a defendant guilty if he commits
either of two underlying acts, either of
which is in itself a separate offense, is
fatally ambiguous because it is impossible to
determine whether the jury unanimously found
that the defendant committed one particular
offense.
State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991)
(citing Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986).
cases, the focus is on the conduct of the defendant.
In such
412 S.E.2d at 314.
Id. at 307,
89a
-35In contrast, this Court has recognized a second line of
cases standing for the proposition that “if the trial court
merely instructs the jury disjunctively as to various alternative
acts which will establish an element of the offense, the
requirement of unanimity is satisfied.”
Lyons, 330 N.C. at 302-
03, 412 S.E.2d at 312 (citing State v. Hartness, 326 N.C. 561,
391 S.E.2d 177 (1990)).
In this type of case, the focus is on
the intent or purpose of the defendant instead of his conduct.
The present case falls into the Hartness line of cases.
N.C.G.S. § 14-39(a) provides that a defendant is guilty of
kidnapping if he
shall unlawfully confine, restrain, or remove
from one place to another, any other person
. . . without the consent of such person
. . . if such confinement, restraint or
removal is for the purpose of:
(1)
Holding such other person for a
ransom or as a hostage or using
such other person as a shield; or
(2)
Facilitating the commission of any
felony or facilitating flight of
any person following the commission
of a felony; or
(3)
Doing serious bodily harm to or
terrorizing the person so confined,
restrained or removed or any other
person; or
(4)
Holding such other person in
involuntary servitude in violation
of G.S. 14-43.2.
N.C.G.S. § 14-39(a).
This statute provides numerous routes by
which a defendant may be convicted of first-degree kidnapping.
Ultimately, however, a defendant can only be found guilty and
punished once.
It is not necessary for the State to prove, nor
90a
-36for the jury to find, that a defendant committed a particular act
other than that of confining, restraining, or removing the
victim.
Beyond that, a defendant’s intent or purpose is the
focus, thus placing the case sub judice squarely within the
Hartness line of cases.
verdict form were proper.
The trial court’s instructions and the
This assignment of error is overruled.
Defendant’s tenth assignment of error is that the trial
court erred in submitting the (e)(6) aggravating circumstance
that the murder was committed for pecuniary gain because the
evidence did not show that defendant killed the victim to obtain
money.
At the beginning of the sentencing proceeding charge
conference, the State requested submission of the pecuniary gain
aggravating circumstance, as well as several other aggravating
circumstances for consideration during the sentencing for
defendant’s first-degree murder conviction.
Defendant objected
solely on the basis of double counting and argued that the jurors
should not be permitted to use larceny of a car to support two
different aggravating circumstances:
(1) that the murder was
committed while the defendant was engaged in the commission of a
first-degree kidnapping, N.C.G.S. § 15A-2000(e)(5), and (2) that
the murder was committed for pecuniary gain, N.C.G.S. § 15A2000(e)(6).
In response to defendant’s concerns of double
counting, the trial court limited the evidence supporting the
aggravating circumstance that defendant murdered the victim for
pecuniary gain to evidence that money was taken from the victim’s
purse.
The trial court also limited the evidence to support the
91a
-37aggravating circumstance that the murder was committed during the
course of the kidnapping to evidence that defendant kidnapped the
victim to facilitate the larceny of the car.
Defendant approved
the instructions after these changes were made.
Further, during argument on how to instruct the jury
regarding the aggravating circumstances, defendant actually
supplied the trial court with the language it used to instruct
the jury for the pecuniary gain circumstance.
At no time did
defendant object or argue that the evidence was insufficient to
submit the pecuniary gain aggravating circumstance.
The only
objection defendant made was that the same evidence was being
used to support more than one aggravating circumstance.
These
concerns were alleviated when the trial court limited the
evidence for the aggravating circumstances and defendant agreed
to the changes.
“Defendant may not swap horses after trial in order to
obtain a thoroughbred upon appeal.”
State v. Benson, 323 N.C.
318, 322, 372 S.E.2d 517, 519 (1988); see also State v. Sharpe,
344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996); State v. Frye, 341
N.C. 470, 496, 461 S.E.2d 664, 677 (1995), cert. denied, 517 U.S.
1123, 134 L. Ed. 2d 526 (1996).
Defendant did not object to the sufficiency of the
evidence to support the pecuniary gain aggravating circumstance
at trial and has not preserved this issue for appellate review.
N.C. R. App. P. 10(b)(1).
In fact, defendant expressly approved
the action of the trial court to which he now objects. Because
92a
-38defendant did not properly preserve this issue for our review,
this assignment of error should be overruled.
Even if defendant had properly preserved this issue for
appeal, he has failed to demonstrate that the trial court erred
in submitting the aggravating circumstance that the murder was
committed for pecuniary gain, specifically to obtain money.
“‘In
determining the sufficiency of the evidence to submit an
aggravating circumstance to the jury, the trial court must
consider the evidence in the light most favorable to the State,
with the State entitled to every reasonable inference to be drawn
therefrom.’”
State v. Anthony, 354 N.C. 372, 434, 555 S.E.2d
557, 596 (2001) (quoting State v. Syriani, 333 N.C. 350, 392, 428
S.E.2d 118, 141, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341
(1993)), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002).
In order to submit the pecuniary gain aggravating circumstance,
there must be evidence that defendant was motivated to kill, at
least in part, for money or something of value.
State v. White,
355 N.C. 696, 710, 565 S.E.2d 55, 64 (2002), cert. denied, 537
U.S. 1163, 154 L. Ed. 2d 900 (2003).
However, financial gain
need not be defendant’s primary motivation.
State v. Davis, 353
N.C. 1, 36, 539 S.E.2d 243, 266 (2000), cert. denied, 534 U.S.
839, 151 L. Ed. 2d 55 (2001).
The evidence at trial showed that defendant wished to
leave Newton Grove but had no car and no job.
Therefore, in
order to leave town, defendant needed a means of transportation
and money to finance his trip.
It is reasonable to infer, based
on the evidence, that defendant acted for his own pecuniary gain
93a
-39when he kidnapped the victim, stole her car, looked through her
purse, and took her money.
While obtaining a car may have been
defendant’s primary motivation, it may be reasonably inferred
from the evidence that he was also motivated by the need for
money.
The fact that defendant killed the victim after he had
obtained the money from her purse is irrelevant.
This Court
addressed the issue in State v. Oliver and determined that the
hope of pecuniary gain and the murder itself were “inextricably
intertwined.”
302 N.C. 28, 62, 274 S.E.2d 183, 204 (1981).
The
hope of pecuniary gain motivated the murder which was ultimately
committed in an effort to enjoy the fruits of the crime.
Id.
The evidence here showed that defendant unequivocally told his
codefendants that he had no intention of leaving a witness.
It
is reasonable to infer from the evidence that defendant,
motivated by the hope for pecuniary gain, kidnapped the victim,
stole her car and her money, and then killed her in an attempt to
elude the authorities.
Considering the evidence in the light
most favorable to the State, we hold that there was sufficient
evidence to support submission of the pecuniary gain aggravating
circumstance based on defendant’s theft of money from the
victim’s purse.
This assignment of error is overruled.
On 7 May 2004, this Court allowed defendant’s motion to
amend the record on appeal and motion to file a supplemental
brief addressing two additional assignments of error.
In one of
defendant’s additional assignments of error, he contends that the
trial court improperly and unconstitutionally instructed the jury
94a
-40on the pecuniary gain aggravating circumstance.
Defendant failed
to object to this jury instruction, and this Court is limited to
a plain error review.
378.
See Odom, 307 N.C. at 659, 300 S.E.2d at
However, a review of the record shows that not only did
defendant fail to object to the trial court’s jury instruction
regarding pecuniary gain, he actually supplied the trial court
with the language that it used in instructing the jury on this
aggravating circumstance.
This Court has consistently denied appellate review to
defendants who have attempted to assign error to the granting of
their own requests.
In State v. Basden, the defendant requested
a jury instruction on a mitigating circumstance and expressed his
satisfaction with the proposed jury instruction when read by the
trial court.
339 N.C. 288, 302, 451 S.E.2d 238, 246 (1994),
cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 845 (1995).
The trial
court instructed the jury in accordance with the defendant’s
request, and the defendant voiced no objection.
Id.
On appeal,
the defendant challenged the language used in the instruction.
Id.
This Court rejected the defendant’s contention and stated:
“Having invited the error, defendant cannot now claim on appeal
that he was prejudiced by the instruction.”
Id. at 303, 451
S.E.2d at 246; see also N.C.G.S. § 15A-1443(c) (2003); State v.
Harris, 338 N.C. 129, 150, 449 S.E.2d 371, 380 (1994), cert.
denied, 514 U.S. 1100, 131 L. Ed. 2d 752 (1995); State v.
Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991).
Here, the evidence shows that the trial court and the
State agreed with defendant’s request to limit the instruction on
95a
-41the pecuniary gain aggravating circumstance to the money taken
from Ms. Kennedy’s purse.
The trial court and the State further
agreed to limit the instruction on the aggravating circumstance
that the murder was committed during the commission of a firstdegree kidnapping to evidence that the victim was kidnapped to
facilitate the larceny of the car.
The record shows that these
instructions were so modified in response to defendant’s
concerns.
Furthermore, reading the jury instruction as a whole,
we cannot say as a matter of law that the error, if any, rose to
the level of plain error such that there is a reasonable
probability that the result would have been different had the
error not occurred.
State v. Collins, 334 N.C. 54, 62, 431
S.E.2d 188, 193 (1993).
This assignment of error is overruled.
In defendant’s other additional assignment of error set
forth in his supplemental brief, he contends that the trial court
erred by overruling his objection to the admission of a
testimonial statement made by a witness who was not found to be
unavailable and had never been subjected to cross-examination by
defendant.
During the sentencing phase of defendant’s trial, one
of the aggravating circumstances upon which the State relied was
defendant’s commission of a prior crime of violence.
N.C.G.S. § 15A-2000(e)(3) (2003).
See
To prove this aggravating
circumstance, the State introduced an indictment and judgment
against defendant for a prior common-law robbery.
The State also
called Officer John Conerly to testify regarding the incident
because he had investigated the robbery and taken a statement
96a
-42from the victim at the time of the crime.
The prosecutor
explained, “[T]he victim is not available.
The victim was a
Hispanic and has left, we tracked, pulled the record, he’s left
the state and possibly the country.”
The State offered no other
evidence to prove the victim’s unavailability, and the trial
court made no findings of fact or conclusions of law regarding
unavailability.
Officer Conerly testified that he was the Chief of
Police in Newton Grove in 1998 when he received a call about a
robbery.
Officer Conerly stated that he investigated the crime
and took a statement from Jose Gasca, the victim, regarding the
robbery.
The statement provided:
He [Gasca] stated that he was in West Hunting
and Fishing. That he had seven hundred
dollars, I believe he was sending back to his
sister in Mexico. That someone ran up behind
him and pushed and shoved him, grabbed his
money. That he chased them outside. That
they jumped into a vehicle and had taken off,
and that he was struggling with the fella who
was getting in the vehicle. That he cut him
with what he thought was a knife.
In Crawford v. Washington, ___ U.S. ___, 158 L. Ed. 2d
177 (2004), the United States Supreme Court overruled Ohio v.
Roberts, 448 U.S. 56, 65 L. Ed. 2d 597 (1980), and held the
Confrontation Clause bars out-of-court testimony by a witness
unless the witness was unavailable and the defendant had a prior
opportunity to cross-examine him, regardless of whether the trial
court deems the statements reliable.
In Crawford, the Court
held:
Where testimonial statements are
involved, we do not think the Framers meant
to leave the Sixth Amendment’s protection to
97a
-43the vagaries of the rules of evidence, much
less to amorphous notions of “reliability.”
. . . Admitting statements deemed reliable by
a judge is fundamentally at odds with the
right of confrontation. To be sure, the
Clause’s ultimate goal is to ensure
reliability of evidence, but it is a
procedural rather than a substantive
guarantee. It commands, not that evidence be
reliable, but that reliability be assessed in
a particular manner: by testing in the
crucible of cross-examination.
Id. at ___, 158 L. Ed. 2d at 199.
Here, the State presented Gasca’s statement relating
details of the robbery through the testimony of Officer Conerly.
The only evidence of Gasca’s unavailability was the State’s
assertion.
The State presented no evidence of the efforts it
took to procure Gasca beyond stating that it had “pulled the
record” and found that Gasca had left the state.
“[O]nce the
[S]tate decides to present the testimony of a witness to a
capital sentencing jury, the Confrontation Clause requires the
[S]tate to undertake good-faith efforts to secure the ‘better
evidence’ of live testimony before resorting to the ‘weaker
substitute’ of former testimony.”
State v. Nobles, 357 N.C. 433,
441, 584 S.E.2d 765, 771 (2003) (quoting United States v. Inadi,
475 U.S. 387, 394-95, 89 L. Ed. 2d 390, 398 (1986)).
The
evidence presented by the State of its efforts to find Gasca does
not amount to the “good-faith efforts” required by Nobles.
Further, the admission of Gasca’s statement by Officer
Conerly violates the cross-examination requirements of Crawford.
“Where testimonial evidence is at issue . . . the Sixth Amendment
demands what the common law required:
opportunity for cross-examination.”
unavailability and a prior
Crawford, ___ U.S. at ___,
98a
-44158 L. Ed. 2d at 203.
In Crawford, the Supreme Court failed to
spell out a comprehensive definition of “testimonial” but stated,
“[w]hatever else the term covers, it applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or
at a former trial; and to police interrogations.”
Id.
The Court
also declined to define “police interrogation” and stated in
footnote four:
“Just as various definitions of ‘testimonial’
exist, one can imagine various definitions of ‘interrogation,’
and we need not select among them in this case.”
158 L. Ed. 2d at 194 n.4.
Id. at ___ n.4,
A witness’s “recorded statement,
knowingly given in response to structured police questioning,
qualifies under any conceivable definition.”
Id.
Here, the statement made by Gasca was in response to
structured police questioning by Officer Conerly regarding the
details of the robbery committed by defendant.
There can be no
doubt that this statement was made to further Officer Conerly’s
investigation of the crime.
Gasca’s statement contributed to
defendant’s arrest and conviction of common-law robbery.
Therefore, Gasca’s statement is testimonial in nature, triggering
the requirement of cross-examination set forth by Crawford.
The record is devoid of evidence that defendant had a
prior opportunity to cross-examine Gasca at any point before
Gasca’s statement was introduced into evidence through the
testimony of Officer Conerly.
Therefore, the trial court erred
in allowing the State to introduce Gasca’s statement through
Officer Conerly.
99a
-45We now turn our attention to whether the trial court’s
error prejudiced defendant.
Because this error is one with
constitutional implications, the State bears the burden of
proving that the error was harmless beyond a reasonable doubt.
N.C.G.S. § 15A-1443(b).
One way the State may meet its burden is
by showing that there is overwhelming evidence of defendant’s
guilt.
State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346
(1988).
At trial, Officer Conerly first read defendant’s
statement admitting to committing the robbery against Gasca.
Officer Conerly then proceeded to read into evidence Gasca’s
statement that he was robbed and cut by defendant.
The substance
of Gasca’s statement was already in evidence, based on
defendant’s own statement and Officer Conerly’s observations.
Defendant’s cross-examination of Officer Conerly further
confirmed that not only did defendant confess to committing the
crime, but that defendant thereafter pled guilty to common-law
robbery.
Defendant contends that he was prejudiced because
Gasca’s statement was the only evidence that the robbery was
violent and that without this statement the jury may have
rejected this aggravating circumstance.
We disagree.
The aggravating circumstance of committing a prior
crime of violence can be found if the defendant has been
previously convicted of a felony involving the use or threat of
violence to a person, not just the use of violence.
Here, the
indictment and judgment presented into evidence show that
defendant pled guilty to common-law robbery.
The elements of
100a
-46common-law robbery are “‘“ the felonious, non-consensual taking
of money or personal property from the person or presence of
another by means of violence or fear.”
State v. Smith, 305 N.C.
691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L.
Ed. 2d 622 (1982).’”
State v. Moss, 332 N.C. 65, 72, 418 S.E.2d
213, 217 (1992) (quoting State v. Herring, 322 N.C. 733, 739-40,
370 S.E.2d 363, 368 (1988)).
Therefore, defendant’s guilty plea
to common- law robbery was an admission of the commission of a
felony involving the use or threat of violence even without the
erroneous admission of Gasca’s statement that defendant robbed
him and cut him with a knife.
Since defendant’s plea of guilty
to common-law robbery sufficiently established the aggravating
circumstance in and of itself, the trial court’s erroneous
admission of Gasca’s statement is harmless error beyond a
reasonable doubt.
This assignment of error is overruled.
Defendant’s eleventh assignment of error is that the
trial court erred in overruling defendant’s objection to the
submission of the (f)(1) statutory mitigating circumstance that
he had no significant prior criminal history.
During the charge conference portion of the sentencing
proceeding, the trial court stated its intention to submit the
(f)(1) mitigating circumstance for the jury’s consideration.
Defendant objected and requested that the jury be instructed that
defendant objected to the submission of this mitigating
circumstance and that the submission was required by law.
trial court granted defendant’s request.
The
At sentencing, the
trial court instructed the jury on the mitigating circumstance
101a
-47and made it clear that defendant had not requested it.
The trial
court listed defendant’s prior crimes, which included felony
possession of stolen goods, felony common-law robbery,
misdemeanor possession of stolen goods, misdemeanor larceny,
misdemeanor communicating a threat, use of alcohol while under
age, and use of illegal drugs.
Defendant also informed the jury
that he had not requested the instruction and that it was
required by law.
Defendant argues that because he specifically objected
to the submission of the mitigating circumstance and because no
rational jury could have found it from the evidence presented at
trial, the trial court erred in submitting it to the jury.
We
disagree.
“The test governing the decision to
submit the (f)(1) mitigator is ‘whether a
rational jury could conclude that defendant
had no significant history of prior criminal
activity.’ If so, the trial court has no
discretion; the statutory mitigating
circumstance must be submitted to the jury,
without regard to the wishes of the State or
the defendant.”
State v. White, 343 N.C. 378, 394-95, 471 S.E.2d 593, 602-03
(quoting State v. Walker, 343 N.C. 216, 223, 469 S.E.2d 919, 922,
cert. denied, 519 U.S. 901, 136 L. Ed. 2d 180 (1996)), cert.
denied, 519 U.S. 936, 136 L. Ed. 2d 229 (1996) (internal
citations omitted).
The circumstance under consideration here is
after all a statutory mitigating circumstance which, if found,
must be taken as having value to defendant.
Any reasonable doubt
regarding whether to submit a mitigating circumstance must be
resolved in favor of a defendant.
State v. Smith, 347 N.C. 453,
102a
-48469, 496 S.E.2d 357, 366-67, cert. denied, 525 U.S. 845, 142 L.
Ed. 2d 91 (1998).
The trial court should focus on “‘whether the
criminal activity is such as to influence the jury’s sentencing
recommendation’” in determining if a defendant’s history is
“significant.”
State v. Blakeney, 352 N.C. 287, 319, 531 S.E.2d
799, 821 (2000) (quoting State v. Greene, 351 N.C. 562, 569, 528
S.E.2d 575, 580, cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543
(2000)), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001).
The nature and age of a defendant’s criminal activities are
important to the trial court’s analysis of whether a rational
juror could reasonably find the “no significant history of prior
activity” mitigating circumstance.
716, 487 S.E.2d 714, 721 (1997).
State v. Jones, 346 N.C. 704,
However, “‘the mere number of
criminal activities is not dispositive.’”
Id. (quoting State v.
Geddie, 345 N.C. 73, 102, 478 S.E.2d 146, 161 (1996), cert.
denied, 522 U.S. 825, 139 L. Ed. 2d 43 (1997)).
Here, the trial court properly submitted the (f)(1)
mitigating circumstance because a rational jury could have found
from the evidence submitted that defendant had no significant
history of prior criminal activity.
Most of defendant’s prior
convictions were crimes against property.
Defendant had been
convicted of common-law robbery but had not repeatedly engaged in
threatening or violent behavior beyond that one conviction.
Defendant’s convictions for use of drugs and alcohol, while prior
convictions, were not significant enough to keep this mitigating
circumstance from the jury.
These same convictions were used to
support two other mitigating circumstances.
Defendant received
103a
-49no active prison time for any of his prior convictions, and
although defendant’s history was fairly recent, numerous
mitigating circumstances based on his age and family history were
presented for the jury to consider when viewing his criminal
history.
In light of these circumstances, the trial court did
not err in determining that a rational juror could have
reasonably found the mitigating circumstance that defendant had
no significant history of prior criminal activity.
Even assuming arguendo that the trial court erred in
submitting the (f)(1) mitigating circumstance to the jury, this
Court has held that “‘[a]bsent extraordinary facts . . . , the
erroneous submission of a mitigating circumstance is harmless.’”
State v. Bone, 354 N.C. 1, 16, 550 S.E.2d 482, 492, (2001)
(quoting Walker, 343 N.C. at 223, 469 S.E.2d at 923), cert.
denied, 535 U.S. 940, 152 L. Ed. 2d 231 (2002).
Defendant contends that extraordinary facts are
presented when the trial court submits the (f)(1) (no significant
history of criminal activity) mitigating circumstance and the
State also relies on the (e)(3) aggravating circumstance (a prior
conviction for a crime involving violence to another person).
“This Court has repeatedly upheld submission of the (f)(1)
mitigating circumstance in cases where the (e)(3) aggravating
circumstance was submitted to the jury.”
Blakeney, 352 N.C. at
319, 531 S.E.2d at 821; see also State v. Ball, 344 N.C. 290,
310-11, 313, 474 S.E.2d 345, 357, 359 (1996), cert. denied, 520
U.S. 1180, 137 L. Ed. 2d 561 (1997); Walker, 343 N.C. at 224-26,
469 S.E.2d at 923-24; State v. Brown, 315 N.C. 40, 61-63, 337
104a
-50S.E.2d 808, 824-25 (1985), cert. denied, 476 U.S. 1165, 90 L. Ed.
2d 733 (1986), overruled on other grounds by State v. Vandiver,
321 N.C. 570, 364 S.E.2d 373 (1988).
Defendant also contends that because the prosecutor
argued to the jury that it should reject the (f)(1) mitigating
circumstance, the mitigating circumstance was effectively turned
into an aggravating circumstance.
We disagree.
In Walker, this Court examined the issue of a
prosecutor’s conduct in addressing the jury regarding the (f)(1)
mitigating circumstance when defendant had specifically objected
to its submission.
The Court stated that:
[P]rosecutors must not argue to the jury that
a defendant has requested that a particular
mitigating circumstance be submitted or has
sought to have the jury find that
circumstance, when the defendant has in fact
objected to the submission of that particular
mitigating circumstance. Additionally, the
better practice when a defendant has objected
to the submission of a particular mitigating
circumstance is for the trial court to
instruct the jury that the defendant did not
request that the mitigating circumstance be
submitted. In such instances, the trial
court also should inform the jury that the
submission of the mitigating circumstance is
required as a matter of law because there is
some evidence from which the jury could, but
is not required to, find the mitigating
circumstance to exist.
Walker, 343 N.C. at 223-24, 469 S.E.2d at 923.
Here, the
prosecutor never argued to the jury that defendant had requested
the (f)(1) mitigating circumstance.
All the prosecutor did was
explain to the jury why it should reject the mitigating
circumstance.
Further, the trial court specifically instructed
the jury that defendant did not request the mitigating
105a
-51circumstance and that the trial court was required by law to give
the instruction.
Defendant also explained to the jury that he
had not requested the mitigating circumstance.
Defendant has failed to show that the trial court erred
in submitting the (f)(1) mitigating circumstance to the jury or
that the prosecutor’s actions in addressing the jury regarding
the mitigating circumstance were error.
But, even if the trial
court had erred in submitting the mitigating circumstance to the
jury, defendant has failed to show that extraordinary
circumstances exist which would cause the error to be prejudicial
to defendant.
This assignment of error is overruled.
Defendant’s twelfth assignment of error is that the
trial court erred in denying defendant’s request to instruct the
jury, throughout its sentencing instructions to the jury, that
“life imprisonment” meant “life in prison without parole.”
During the charge conference, defendant’s codefendant
requested that the trial court continuously define the term “life
imprisonment” as meaning “life without parole.”
in this request.
Defendant joined
The trial court denied the request and relied
on the pattern jury instructions.
Defendant also requested that
the trial court modify the verdict sheet to reflect “life without
parole.”
This request was denied as well.
Section 15A-2002 of the General Statutes states:
“The
judge shall instruct the jury, in words substantially equivalent
to those of this section, that a sentence of life imprisonment
means a sentence of life without parole.”
(2003).
N.C.G.S. § 15A-2002
This Court has held that when a trial court instructs
106a
-52the jury pursuant to N.C.G.S. § 15A-2002, the trial court has no
duty to inform the jury “that a life sentence means life without
parole every time [it] mention[s] a life sentence.”
State v.
Bonnett, 348 N.C. 417, 448-49, 502 S.E.2d 563, 584 (1998), cert.
denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999); see also Davis,
353 N.C. at 40-41, 539 S.E.2d at 269 (“We find nothing in the
statute that requires the judge to state ‘life imprisonment
without parole’ every time he alludes to or mentions the
alternative sentence.”).
Here, the jurors twice heard the term “life without
parole” as one of the two sentencing alternatives in the trial
court’s preliminary instructions during jury voir dire.
The
jurors were questioned during voir dire with the term “life
without parole” used numerous times as one of the sentencing
alternatives.
One juror even demonstrated an understanding of
what the term meant under questioning by defendant as to what
life imprisonment meant by stating, “I meant life in prison
without any chance of getting out.”
Further, during closing
arguments, the State and defense counsel frequently referred to
“life without parole.”
The trial court began sentencing phase instructions by
saying:
Members of the Jury, having found the
defendants Antwaun Kyral Sims and Bryan
Christopher Bell guilty of murder in the
first degree, it is now your duty to
recommend to the Court whether each defendant
should be sentenced to death or life
imprisonment. A sentence of life
imprisonment means a sentence of life without
parole. The Court has allowed the
defendants’ cases to be joined for this
107a
-53sentencing hearing. Even though the
defendants are joined for this sentencing
hearing, you must determine the sentence of
each defendant individually.
(Emphasis added.)
After this instruction, the trial court used
the term “life imprisonment.”
Based on this instruction, the
trial court instructed the jury in accordance with N.C.G.S. §
15A-2002 and with corresponding case law that a “sentence of life
imprisonment means a sentence of life without parole.”
This
instruction, in conjunction with the jury voir dire and the
closing arguments of the parties in which the term “life without
parole” was used numerous times, makes it clear that the jurors
had no reasonable basis for misunderstanding the meaning of the
term “life imprisonment.”
Defendant also contends that the trial court erred by
submitting the “Issues and Recommendation as to Punishment” form
to the jury with sentencing alternatives of “death” or “life
imprisonment” instead of “death” or “life imprisonment without
parole.”
We disagree.
This Court has previously held that the “Issues and
Recommendation as to Punishment” form need not describe the
punishment as “life imprisonment without parole” when the trial
court instructs the jury that life imprisonment means life
without parole.
State v. Gainey, 355 N.C. 73, 110-11, 558 S.E.2d
463, 487, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
The trial court’s instructions regarding life imprisonment were
in accordance with N.C.G.S. § 15A-2002, and the jurors were
informed numerous times as to the meaning of “life imprisonment.”
Defendant’s assignment of error on this issue is overruled.
108a
-54Defendant’s thirteenth assignment of error is that the
trial court erred by failing to intervene and censor the
prosecutor’s sentencing proceeding closing argument when each
juror was called upon by name to impose a sentence of death.
Defendant argues that the prosecutor improperly appealed to the
emotions of the jurors.
Defendant concedes that he failed to
object to this argument and therefore this Court is limited to
reviewing this issue to determine whether the conduct was so
grossly improper that the trial court erred in failing to
intervene ex mero motu to correct the error.
State v. Sexton,
336 N.C. 321, 348-49, 444 S.E.2d 879, 894-95, cert. denied, 513
U.S. 1006, 130 L. Ed. 2d 429 (1994).
“[T]he impropriety of the
argument must be gross indeed in order for this Court to hold
that a trial judge abused his discretion in not recognizing and
correcting ex mero motu an argument which defense counsel
apparently did not believe was prejudicial when he heard it.”
State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979).
This Court has previously considered this issue and
ruled against defendant’s position.
See State v. Wynne, 329 N.C.
507, 524-25, 406 S.E.2d 812, 821 (1991).
Just as in those cases,
the prosecutor here did not improperly appeal to the jurors’
emotions when asking them to impose the death penalty.
Rather,
the prosecutor was reminding the jurors that they had earlier
averred that they could and would follow the law if the State
proved what was required to impose the death penalty.
“[T]he
prosecutor in a capital case has a duty to strenuously pursue the
goal of persuading the jury that the facts of the particular case
109a
-55at hand warrant imposition of the death penalty.”
State v.
Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41, cert. denied, 513
U.S. 1046, 130 L. Ed. 2d 547 (1994).
Here, the prosecutor did
nothing more than argue to the jurors that the State had proven
its case and that the jurors should now impose the death penalty.
This argument is of a different nature than a
defendant’s emotional appeal to each individual juror to spare
his life.
See State v. Holden, 321 N.C. 125, 163, 362 S.E.2d
513, 536-37 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d
935 (1988).
A defendant’s argument to each juror individually to
spare his life is not based on the evidence presented at trial or
the reasonable inferences that could be taken from it.
Id.
Defendant has failed to show that the prosecutor’s sentencing
arguments were grossly improper and that the trial court abused
its discretion in failing to intervene ex mero motu.
This
assignment of error is overruled.
Defendant’s fourteenth assignment of error is that the
trial court erred in submitting the death penalty to the jury as
a potential punishment because the death penalty violates
provisions of the International Covenant on Civil and Political
Rights, which this country ratified on 8 September 1992.
We
first note that defendant failed to make this objection before
the trial court and has not properly preserved this issue for
appellate review.
Beyond that, this Court has previously
considered, and affirmed, the constitutionality of our death
penalty against the backdrop of the International Covenant on
Civil and Political Rights.
See Williams, 355 N.C. at 586, 565
110a
-56S.E.2d at 658; State v. Smith, 352 N.C. 531, 566, 532 S.E.2d 773,
795 (2000), cert. denied, 532 U.S. 949, 149 L. Ed. 2d 360 (2001).
We see no reason to depart from our previous holdings in this
regard.
This assignment of error is overruled.
Defendant’s fifteenth assignment of error is that the
trial court erred in submitting the aggravating circumstance that
this murder was especially heinous, atrocious, or cruel.
Defendant first argues that N.C.G.S. § 15A-2000(e)(9) is
unconstitutionally vague.
and rejected this argument.
However, we have previously considered
See e.g., State v. Garcia, 358 N.C.
382, 424, 597 S.E.2d 724, 753 (2004); State v. Roache, 358 N.C.
243, 327, 595 S.E.2d 381, 434 (2004); State v. Miller, 357 N.C.
583, 601, 588 S.E.2d 857, 869 (2003), cert. denied, ___ U.S. ___,
___ L. Ed. 2d ___, 72 U.S.L.W. 3768 (2004); State v. Haselden,
357 N.C. 1, 26, 577 S.E.2d 594, 610, cert. denied, ___ U.S. ___,
157 L. Ed. 2d 382 (2003).
We see no reason to depart from our
previous holdings as to this issue.
Defendant additionally argues that the trial court
erred in submitting the (e)(9) aggravating circumstance because
it was unsupported by the evidence.
We disagree.
We have previously identified three types of murders
which warrant submission of the (e)(9) aggravating circumstance.
See State v. Gibbs, 335 N.C. 1, 61-62, 436 S.E.2d 321, 356
(1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994).
One type includes those killings that are physically agonizing or
otherwise dehumanizing to the victim.
State v. Lloyd, 321 N.C.
301, 319, 364 S.E.2d 316, 328, judgment vacated on other grounds,
111a
-57488 U.S. 807, 102 L. Ed. 2d 18 (1988).
Another type includes
those killings involving psychological torture where the victim
is left to her “last moments aware of but helpless to prevent
impending death.”
State v. Hamlet, 312 N.C. 162, 175, 321 S.E.2d
837, 846 (1984).
The final type includes those killings that
“demonstrate[] an unusual depravity of mind on the part of the
defendant beyond that normally present in first-degree murder.”
Brown, 315 N.C. at 65, 337 S.E.2d at 827.
When determining whether it is proper to submit the
(e)(9) aggravating circumstance, evidence must be considered in
the light most favorable to the State and every reasonable
inference must be drawn in its favor.
State v. Flippen, 349 N.C.
264, 270, 506 S.E.2d 702, 706 (1998), cert. denied, 526 U.S.
1135, 143 L. Ed. 2d 1015 (1999).
In the present case, the victim, an eighty-nine year
old woman, was kidnapped from her own home, repeatedly beaten,
and placed in the trunk of her own car to await most certain
death.
The victim fought to free herself from the trunk of her
car, only to have the trunk lid repeatedly slammed down upon her.
The victim was trapped in her car for hours, helpless and
obviously in fear for her life.
She struggled and fought for her
life, ultimately losing the fight and dying alone in the trunk of
her own car, which defendant had set on fire.
After reviewing the evidence presented at trial, in the
light most favorable to the State, we conclude that there was
substantial evidence for the jury to conclude that the victim was
subjected to both physical and psychological torture beyond that
112a
-58present in most first-degree murders.
Therefore, the trial court
did not err in submitting the (e)(9) aggravating circumstance.
This assignment of error is overruled.
Defendant’s sixteenth assignment of error is that the
trial court erred in failing to dismiss defendant’s murder
indictment because the indictment failed to specifically allege
each element of first-degree murder.
held contrary to defendant’s position.
This Court has repeatedly
See State v. Hunt, 357
N.C. 257, 582 S.E.2d 593, cert. denied, 539 U.S. 985, 156 L. Ed.
2d 702 (2003); State v. Braxton, 352 N.C. 158, 531 S.E.2d 428
(2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001);
State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531
U.S. 1018, 148 L. Ed. 2d 498 (2000).
We have considered
defendant’s argument on this issue and find no reason to depart
from our previous holdings.
This assignment of error is
overruled.
Defendant’s seventeenth assignment of error is that the
trial court committed plain error by instructing the jury,
according to the pattern jury instructions, that unanimity was
required for any answer to Issues I, III, and IV on the “Issues
and Recommendation as to Punishment” form.
As to Issue I, the
trial court instructed the jury that it must be unanimous in its
findings regarding the existence of aggravating circumstances.
As to Issue III, the trial court instructed the jury that it must
be unanimous in its decision as to whether the mitigating
circumstances found were insufficient to outweigh the aggravating
circumstances found by the jury.
Finally, as to Issue IV, the
113a
-59trial court instructed the jury that if it unanimously determined
that the mitigating circumstances were insufficient to outweigh
the aggravating circumstances, it must then be unanimous in its
decision as to whether the aggravating circumstances were
sufficient to impose the death penalty.
This Court has
previously considered arguments regarding these jury instructions
and has held contrary to defendant’s position.
See State v.
DeCastro, 342 N.C. 667, 467 S.E.2d 653, cert. denied, 519 U.S.
896, 136 L. Ed. 2d 170 (1996); State v. McLaughlin, 341 N.C. 426,
462 S.E.2d 1 (1995), cert. denied, 516 U.S. 1133, 133 L. Ed. 2d
879 (1996); State v. McCarver, 341 N.C. 364, 462 S.E.2d 25
(1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996).
We have considered defendant’s argument on this issue and find no
reason to depart from our previous holdings.
This assignment of
error is overruled.
Defendant’s eighteenth assignment of error is that the
trial court erred by instructing the jury, according to the
pattern jury instructions, that it had a duty to recommend a
death sentence if it determined that mitigating circumstances
were insufficient to outweigh aggravating circumstances and that
the aggravating circumstances were sufficiently substantial to
warrant the death penalty.
This Court has previously held the
pattern jury instruction at issue to be constitutional.
See
State v. Skipper, 337 N.C. 1, 57, 446 S.E.2d 252, 283 (1994),
cert. denied, 513 U.S. 1134, 130 L. Ed. 2d 895 (1995); State v.
McDougall, 308 N.C. 1, 26, 301 S.E.2d 308, 323-24, cert. denied,
464 U.S. 865, 78 L. Ed. 2d 173 (1983).
We have considered
114a
-60defendant’s argument and see no reason to depart from our
previous holdings.
This assignment of error is overruled.
Defendant’s nineteenth assignment of error is that the
trial court erred by instructing the jury regarding defendant’s
burden of proof on mitigating circumstances and argues that the
instruction was unconstitutionally vague due to the use of the
term “satisfy.”
This Court has previously considered this
argument and held contrary to defendant’s position.
See State v.
Payne, 337 N.C. 505, 532-33, 448 S.E.2d 93, 109 (1994), cert.
denied, 514 U.S. 1038, 131 L. Ed. 2d 292 (1995); Skipper, 337
N.C. at 58, 446 S.E.2d at 284.
We have considered defendant’s
argument and see no reason to depart from our prior holdings.
This assignment of error is overruled.
Defendant’s twentieth assignment of error is that the
trial court erred by instructing the jury that it was to
determine whether factually proven nonstatutory mitigating
circumstances had actual mitigating value.
Defendant contends
that such an instruction allows the jury to refuse to consider
mitigating evidence in violation of the constitutional
requirement that a sentencer consider and give effect to all
mitigating evidence.
However, nonstatutory mitigating
circumstances, in and of themselves, do not have mitigating value
as a matter of law.
State v. Lee, 335 N.C. 244, 292, 439 S.E.2d
547, 572, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994).
This Court has previously held that such an instruction to the
jury does not violate the Constitution.
See State v. Robinson,
336 N.C. 78, 117-18, 443 S.E.2d 306, 325 (1994), cert. denied,
115a
-61513 U.S. 1089, 130 L. Ed. 2d 650 (1995); State v. Hill, 331 N.C.
387, 417-18, 417 S.E.2d 765, 780 (1992), cert. denied, 507 U.S.
924, 122 L. Ed. 2d 684 (1993).
We have considered defendant’s
argument on this issue and see no reason to depart from our
earlier holdings.
This assignment of error is overruled.
Defendant’s twenty-first assignment of error is that
the trial court erred by instructing the jury, according to the
pattern jury instructions, on a definition of aggravation that
was unconstitutionally broad.
This Court has previously
considered this issue and ruled against defendant’s position.
See Lee, 335 N.C. at 288-89, 439 S.E.2d at 570-71; State v.
Hutchins, 303 N.C. 321, 350-51, 279 S.E.2d 788, 806-07 (1981).
We have considered defendant’s argument and see no reason to
depart from our earlier holdings.
This assignment of error is
overruled.
Defendant’s twenty-second assignment of error is that
the trial court erred in instructing the jury as to Issues III
and IV on the “Issues and Recommendation as to Punishment” form
that each juror “may” consider mitigating circumstances found to
exist in Issue II.
Defendant argues that these instructions made
consideration of proven mitigation discretionary rather than
mandatory.
This Court has previously ruled that such
instructions are not erroneous.
See Gregory, 340 N.C. at 418-19,
459 S.E.2d at 668-69; Lee, 335 N.C. at 286-87, 439 S.E.2d at 56970.
We have considered defendant’s arguments and see no reason
to depart from our prior holdings.
overruled.
This assignment of error is
116a
-62Defendant’s twenty-third assignment of error is that
the trial court erred by instructing the jury that each juror
could only consider at Issues III and IV the mitigating
circumstances which that particular juror had found at Issue II.
Defendant argues that this instruction unconstitutionally
precluded the full and free consideration of mitigating evidence.
This Court has previously considered this argument and ruled
against defendant’s position.
See Robinson, 336 N.C. at 120-21,
443 S.E.2d at 326-27; Lee, 335 N.C. at 287, 439 S.E.2d at 569-70.
We have considered defendant’s arguments and see no reason to
depart from our prior holdings.
This assignment of error is
overruled.
Defendant’s twenty-fourth assignment of error is that
the North Carolina death penalty statute is vague and overly
broad, unconstitutionally applied, and cruel and unusual
punishment.
This Court has consistently held that North
Carolina’s capital sentencing statute, N.C.G.S. § 15A-2000, is
constitutional on its face and as applied.
See State v. McKoy,
327 N.C. 31, 394 S.E.2d 426 (1990); State v. Barfield, 298 N.C.
306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 65 L. Ed.
2d 1137 (1980).
We have reviewed defendant’s arguments and find
no reason to depart from our prior holdings.
This assignment of
error is overruled.
Having concluded that defendant’s trial and capital
sentencing proceeding were free of prejudicial error, we must now
review the record and determine:
(1) whether the evidence
supports the aggravating circumstances found by the jury and upon
117a
-63which the sentencing court based its sentence of death; (2)
whether the sentence was imposed under the influence of passion,
prejudice, or any other arbitrary factor; and (3) whether the
sentence is “excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant.”
N.C.G.S. § 15A-2000(d)(2) (2003).
After a thorough review of the record on appeal,
briefs, and oral arguments of counsel, we conclude that the
evidence fully supports the aggravating circumstances found by
the jury.
Additionally, we find no indication that the sentence
of death in this case was imposed under the influence of passion,
prejudice, or any other arbitrary factor.
We therefore turn to
our final statutory duty of proportionality review.
We conduct a proportionality review “to eliminate the
possibility that a person will be sentenced to die by the action
of an aberrant jury.”
537.
Holden, 321 N.C. at 164-65, 362 S.E.2d at
crime.
In doing so, we must look at both the defendant and the
State v. Watts, 357 N.C. 366, 379, 584 S.E.2d 740, 750
(2003), cert. denied, ___ U.S. ___, 158 L. Ed. 2d 370 (2004).
In
the present case, defendant was found guilty of first-degree
murder, first-degree kidnapping, and burning of personal
property.
Following a capital sentencing proceeding, the jury
found the existence of five aggravating circumstances:
(1)
defendant had been previously convicted of a felony involving the
use or threat of violence, N.C.G.S. § 15A-2000(e)(3); (2) the
murder was committed for the purpose of avoiding lawful arrest,
N.C.G.S. § 15A-2000(e)(4); (3) the murder was committed while
118a
-64defendant was engaged in the commission of a first-degree
kidnapping, N.C.G.S. § 15A-2000(e)(5); (4) the murder was
committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); and (5)
the murder was especially heinous, atrocious, or cruel, N.C.G.S.
§ 15A-2000(e)(9).
The trial court submitted five statutory mitigating
circumstances to the jury, including the “catchall” statutory
mitigating circumstance, N.C.G.S. §
15A-2000(f)(9).
However,
the jury found only two statutory mitigating circumstances to
exist:
that the murder was committed while defendant was under
the influence of mental or emotional disturbance, N.C.G.S. §
15A-2000(f)(2); and defendant’s age at the time of the crime,
N.C.G.S. § 15A-2000(f)(7).
The trial court additionally
submitted ten nonstatutory mitigating circumstances, of which the
jury found six to exist:
(1) a lack of adequate role modeling
during defendant’s formative years contributed to defendant’s
acceptance of peer pressure in forming his opinions and shaping
his behavior; (2) defendant was intoxicated, reducing his ability
to make appropriate judgments; (3) defendant has a desire to
correct his deficiencies and make a positive contribution to
society in the future; (4) defendant was negatively affected as a
young teen by the family trauma caused by his father; (5)
defendant had a chaotic and unstable home life lacking in
parental guidance; and (6) defendant changed and began acting
tough when his father entered into his life.
We begin our proportionality review by comparing this
case to the eight cases where this Court has determined the
119a
-65sentence of death to be disproportionate.
See State v.
Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002); Benson, 323 N.C.
318, 372 S.E.2d 517; State v. Stokes, 319 N.C. 1, 352 S.E.2d 653
(1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986),
overruled on other grounds by State v. Gaines, 345 N.C. 647, 483
S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997),
and by Vandiver, 321 N.C. 570, 364 S.E.2d 373; State v. Young,
312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465,
319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309
S.E.2d 170 (1983); and State v. Jackson, 309 N.C. 26, 305 S.E.2d
703 (1983).
After careful review, we conclude that this case is
not substantially similar to any case in which this Court has
previously found the death penalty disproportionate.
In conducting a proportionality review, we must also
compare this case with prior cases where this Court has found the
death penalty to be proportionate.
S.E.2d at 613.
Haselden, 357 N.C. at 31, 577
First, defendant was convicted on the basis of
malice, premeditation and deliberation and under the felony
murder rule.
“‘The finding of premeditation and deliberation
indicates a more cold-blooded and calculated crime.’”
Id. at 30,
577 S.E.2d at 612 (quoting State v. Artis, 325 N.C. 278, 341, 384
S.E.2d 470, 506 (1989), judgment vacated on other grounds, 494
U.S. 1023, 108 L. Ed. 2d 604 (1990)).
This Court has repeatedly
noted that “‘a finding of first-degree murder based on theories
of premeditation and deliberation and of felony murder is
significant.’”
State v. Carroll, 356 N.C. 526, 554-55, 573
120a
-66S.E.2d 899, 917 (2002) (quoting Bone, 354 N.C. at 22, 550 S.E.2d
at 495), cert. denied, 539 U.S. 949, 156 L. Ed. 2d 640 (2003).
Further, defendant was convicted of two additional
crimes against the victim:
of personal property.
first-degree kidnapping and burning
The jury found five aggravating
circumstances in this case, including that the murder was
committed during the commission of a first-degree kidnapping,
N.C.G.S. § 15A-2000(e)(5), and that the murder was especially
heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9).
This
Court has previously determined that the (e)(5) and (e)(9)
aggravating circumstances are sufficient, standing alone, to
sustain a death sentence.
See Haselden, 357 N.C. at 30, 577
S.E.2d at 612; State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d
542, 566 n.8 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d
1083 (1995).
Upon comparison of the present case with those in which
we have previously conducted a proportionality review, we
conclude that this case is more similar to cases in which this
Court has found the sentence of death proportionate than to those
in which this Court has found the sentence of death
disproportionate.
The inquiry into proportionality does not, however, end
here.
The similarities between this case and prior cases in
which a sentence of death was found proportionate “merely serves
as an initial point of inquiry.”
State v. Daniels, 337 N.C. 243,
287, 446 S.E.2d 298, 325 (1994), cert. denied, 513 U.S. 1135, 130
L. Ed. 2d 895 (1995).
The final decision of whether a death
121a
-67sentence is disproportionate “ultimately rest[s] upon the
‘experienced judgments’ of the members of this Court.”
336 N.C. at 198, 443 S.E.2d at 47.
Green,
Therefore, having thoroughly
reviewed the entire record in this matter, and based upon the
characteristics of defendant and his crime, we cannot conclude as
a matter of law that the sentence of death in this case is
disproportionate or excessive.
Accordingly, we hold that defendant received a fair
trial and capital sentencing proceeding, free of prejudicial
error.
NO ERROR.
122a
STATE OF NORTH CAROLINA v. ANTWAUN KYRAL SIMS
NO. COA02-1262
Filed: 18 November 2003
1.
Evidence--rag with victim’s blood and defendant’s semen--knowledge--active
participant in crime
The trial court did not abuse its discretion in a first-degree murder, first-degree
kidnapping, and burning personal property case by admitting into evidence a rag found in the
back seat area of the victim’s Cadillac and the scientific analysis of that rag which concluded
that the rag contained the victim’s blood as well as traces of defendant’s semen, because: (1) the
evidence was not duplicative of the other evidence placing defendant in the Cadillac when it was
used to show that defendant used the rag to wipe down the backseat of the car to wipe away the
victim’s blood, that defendant had knowledge of the kidnapping and helped cover it up, and that
defendant was an active participant in the series of events; and (2) the evidence was not unfairly
prejudicial when the trial court instructed the jury that the rag was not to be used as evidence of a
sexual assault when there was no evidence of sexual assault.
2.
Criminal Law--prosecutor’s argument--rag contained victim’s blood and traces of
defendant’s semen
The trial court did not abuse its discretion in a first-degree murder, first-degree
kidnapping, and burning personal property case by failing to sustain defendant’s objection to the
State’s reference during its opening and closing arguments to evidence of a rag found in the back
seat area of the victim’s Cadillac and the scientific analysis of that rag which concluded that the
rag contained the victim’s blood as well as traces of defendant’s semen, because: (1) the State
used the evidence only to argue that defendant knew the victim had been kidnapped and that he
participated in the events; (2) the trial court instructed the jury not to consider the evidence of the
presence of semen on the rag as evidence of sexual assault; and (3) the State referred to the rag
merely in a factual manner during opening statements.
3.
Criminal Law--prosecutor’s argument-–comparing defendant to an animal--acting
in concert theory
Although the trial court erred in a first-degree murder, first-degree kidnapping, and
burning personal property case by allowing the State during closing arguments to improperly
compare defendant to a hyena and an animal of the African plain and to state that “he who hunts
with the pack is responsible for the kill” when the reference went beyond a simple analogy to
help explain the theory of acting in concert, the improper statements did not deny defendant due
process and entitled him to a new trial because: (1) the State did not misstate the evidence or the
law in making its argument; (2) the trial court instructed the jury that closing arguments are not
evidence; and (3) there was an abundance of evidence, both physical and testimonial, that
defendant was guilty of the crimes charged.
4.
Criminal Law--prosecutor’s argument-–defendant a devil
The trial court did not commit prejudical error in a first-degree murder, first-degree
kidnapping, and burning personal property case by allowing the State to contend during closing
arguments that “if you are going to try the devil, you have to go to hell to get your witnesses,”
because: (1) the Court of Appeals and our Supreme Court have already concluded that almost
exactly this same statement was not reversible error; and (2) although in some contexts such a
123a
statement by the prosecutor may be inappropriate, defendant is not entitled to a new trial given
the overwhelming evidence of defendant’s guilt.
Judge WYNN concurring.
Appeal by defendant from judgments entered 24 August 2001 by
Judge Jay D. Hockenbury in Superior Court, Onslow County. Heard in
the Court of Appeals 19 August 2003.
Attorney General Roy Cooper, by Special Deputy
General A. Danielle Marquis, for the State.
Attorney
Mary March Exum for defendant-appellant.
McGEE, Judge.
Antwaun Kyral Sims (defendant) was convicted of first-degree
murder, first-degree kidnapping, and burning personal property on
24 August 2001.
The trial court found defendant to have a prior
record level II for the latter two offenses.
The trial court
sentenced defendant to life imprisonment without parole for the
first-degree murder conviction, to a minimum term of 100 months and
a
maximum
term
of
129
months
imprisonment
for
first-degree
kidnapping, and to a minimum term of eight months and a maximum
term of ten months imprisonment for burning of personal property.
Defendant appeals.
The State's evidence at trial tended to show that defendant
was with Chad Williams (Williams) and Chris Bell (Bell) at the
traffic circle in Newton Grove, North Carolina on 3 January 2000,
when Bell said that the group needed to rob someone to get a car so
Bell could leave the state to avoid a probation violation hearing.
Defendant agreed to assist Bell.
Defendant, Bell, and Williams
observed Elleze Kennedy (Ms. Kennedy), an eighty-nine-year old
124a
woman, leaving the Hardee's restaurant across from the traffic
circle around 7:00 p.m.
Ms. Kennedy got into her Cadillac and
drove to her home a few blocks away.
Defendant, Bell, and Williams
ran after Ms. Kennedy's car, cutting across several yards until
they reached Ms. Kennedy's home.
Bell approached Ms. Kennedy in
her driveway with a BB pistol and demanded Ms. Kennedy's keys.
Ms.
Kennedy began yelling and Bell hit her in the face with the pistol,
knocking her to the ground.
Bell told defendant and Williams to
help him find the keys to Ms. Kennedy's Cadillac.
After rifling
through Ms. Kennedy's pockets, Williams found the keys on the
carport and handed them to defendant who agreed to drive.
Bell told defendant and Williams to move Ms. Kennedy to the
back seat of the Cadillac.
When defendant and Williams attempted
to do so, Ms. Kennedy bit Williams on the hand.
Williams hit Ms.
Kennedy in the jaw, and with defendant's help, put her in the back
seat.
Ms. Kennedy kept asking Bell where he was taking her.
Bell
responded by telling her to shut up and striking her in the face
several times with the pistol.
Ms. Kennedy, who was now bleeding
steadily, ceased struggling.
After driving to Bentonville Battleground, defendant, Bell,
and Williams put Ms. Kennedy, who was unconscious at the time, in
the trunk of the Cadillac.
While driving around, Bell told
defendant to turn up the radio so they could not hear Ms. Kennedy
in the trunk.
Defendant, Bell, and Williams drove to the Chicopee
Trailer Park in Benson, North Carolina, arriving at Mark Snead's
(Snead) trailer around 8:30 p.m.
Defendant, Bell, and Williams
told Snead that the Cadillac was a rental car and that the three of
125a
them were driving to Florida.
Defendant, Bell, and Williams went
inside Snead's trailer and all smoked marijuana.
Defendant, Bell,
and Williams later drove to the other side of the trailer park to
visit Pop and Giovanni Surles, also telling them that the Cadillac
was a rental car.
While at the Chicopee Trailer Park, Williams told defendant
and Bell that he was not going to travel in a stolen car to Florida
with an abducted woman in the trunk.
Williams got out of the
Cadillac and began to walk back to Snead's trailer.
Defendant and
Bell drove away but later returned to Snead's trailer with the
music in the Cadillac turned up very loud.
Defendant and Bell told
Williams that they had let Ms. Kennedy out of the trunk at a
McDonald's and that Ms. Kennedy was now talking to the police.
Williams then got back in the Cadillac and the three drove to
defendant's brother's house.
Defendant stated that he wanted to
wipe up Ms. Kennedy's blood from the back seat of the Cadillac.
Defendant went into his brother's house and returned with a damp
rag, which he used to wipe down the backseat and backdoor where Ms.
Kennedy had originally been held before she was placed in the
trunk.
Defendant drove Williams and Bell to a nearby truck stop where
Bell took four dollars from Ms. Kennedy's pocketbook, which he gave
to defendant to buy gasoline for the Cadillac. Bell told defendant
to leave the car running.
off.
Nevertheless, defendant turned the car
While the car was turned off, Williams heard scuffling in the
trunk and confronted defendant and Bell about Ms. Kennedy; however,
defendant and Bell laughed, again saying they had dropped Ms.
126a
Kennedy off at McDonald's.
As they drove to Fayetteville, Bell threw the BB pistol and
Ms. Kennedy's credit cards out of the window of the Cadillac.
Defendant, Bell, and Kennedy parked at a motel and were opening the
trunk to let Ms. Kennedy out when a police car drove by.
They
closed the trunk, got back in the Cadillac, and drove to a nearby
housing project where defendant and Bell reopened the trunk.
Williams testified that it appeared Ms. Kennedy attempted to get
out of the trunk but that defendant slammed the trunk back down.
Defendant, Bell, and Williams decided to return to Newton
Grove to find the scope from the BB pistol which was lost during
the abduction of Ms. Kennedy. Upon arriving at Ms. Kennedy's home,
Williams observed blood on the concrete slab, as well as a pair of
glasses and a woman's shoe.
Bell searched Ms. Kennedy's yard for
the scope but did not find it; he picked up the woman's shoe and
put it in the Cadillac.
While discussing what to do with Ms. Kennedy, Bell told
Williams that he knew a place to put her, but that defendant knew
of an even better place.
Defendant, Bell, and Williams drove to a
field with some trees, located near defendant's brother's house.
The three opened the trunk and Williams saw Ms. Kennedy moving
around in the trunk and moaning.
Williams asked if they could let
her go, but Bell replied, "Man, I ain't trying to leave no
witnesses.
This lady done seen my face.
no witnesses."
I ain't trying to leave
Bell asked defendant for a lighter to burn Bell's
blood-covered jacket. Defendant gave Bell his lighter and Bell set
the jacket on fire and threw it into the Cadillac.
Bell stayed to
127a
watch
the
fire,
defendant's
but
brother's
defendant
and
house
watch
to
Williams
walked
television.
back
When
to
Bell
returned to the house, he first joked that he had let Ms. Kennedy
out of the car and that she had driven the Cadillac away; however,
he informed defendant and Williams that he had actually just stayed
to watch the jacket burn. The three slept at defendant's brother's
house.
The next morning Bell told defendant to go back to the
car and confirm that Ms. Kennedy was dead, and that if she was not,
defendant should finish burning the Cadillac.
Defendant returned
and told Bell and Williams that Ms. Kennedy was dead and that all
of the windows in the Cadillac were smoked.
Bell did not believe
defendant and called Ryan Simmons (Simmons) to come and drive them
to the Cadillac.
Defendant and Bell wiped the car down to remove
any fingerprints, and Williams, responding to an inquiry from
Simmons, confirmed the Cadillac was indeed stolen.
Simmons drove defendant, Bell, and Williams to Bell's house
for a change of clothes and a few video games, and then drove the
three back to defendant's brother's house.
Simmons came back to
pick up Bell and Williams a couple of days later; however, before
leaving, Bell told Williams and defendant to lie if the police
questioned them about the murder.
Ms. Kennedy's Cadillac was found by law enforcement the
morning
after
her
abduction.
Kennedy's body in the trunk.
Investigators
compared
Investigators
to,
and
identified
Ms.
They made castings of footprints
found in the area of the abandoned Cadillac.
later
discovered
matched,
fibers
shoes
The castings were
taken
consistent
from
with
Ms.
defendant.
Kennedy's
128a
clothing on clothes seized from Williams, and identified Ms.
Kennedy's blood on clothes worn by Williams and Bell and on Bell's
burned jacket.
backseat
Investigators recovered a red cloth from the
floorboard,
which
was
later
identified
as
the
one
defendant had used to wipe down the back seat of the Cadillac.
Tests of the cloth showed traces of defendant's semen and Ms.
Kennedy's blood.
Police found two hairs in the backseat area of
the Cadillac, one of which was later determined to be defendant's
and the other Bell's.
Police also matched latent fingerprints
found on the Cadillac with prints taken from defendant and Bell.
The police concluded that the fire was set intentionally and
burned the rear of the front seats and the armrest before it
extinguished
from
a
lack
of
oxygen,
leaving
soot
inside
the
passenger compartment as well as in the trunk.
Upon investigating the area outside Ms. Kennedy's residence,
investigators discovered a large puddle of blood in the driveway,
a pair of eyeglasses, a dental partial, a blue button, a walking
cane, a partial shoe impression, and blood smear marks on the
driveway consistent with a dragging motion.
Forensic pathologist Dr. Falpy Carl Barr (Dr. Barr) testified
that he conducted Ms. Kennedy's autopsy on 5 January 2000.
Dr.
Barr noted blunt force injuries to Ms. Kennedy's face, including an
injury to the bridge of her nose, fractures of the small bones on
either side of her nose, as well as abrasions above each eyebrow,
bruises to her face, neck, and chest area, and
hands.
injuries to her
Dr. Barr testified that Ms. Kennedy was struck multiple
times with a weapon, leaving marks consistent with a pellet gun,
129a
and that the other bruising to her torso could have been the result
of having been kicked.
Dr. Barr also testified that Ms. Kennedy's
dental bridge was missing and that several teeth were loose.
Dr.
Barr testified that there was no evidence of sexual assault of Ms.
Kennedy.
Dr. Barr testified that because of the extent of soot in
her trachea and lungs he believed that she was alive and breathing
at the time the fire took place in the vehicle; however, because of
Ms. Kennedy's elevated carbon monoxide level, Dr. Barr came to the
conclusion that Ms. Kennedy died as a result of carbon monoxide
poisoning from a fire in the Cadillac.
Williams lied to the police about his involvement, and he
claimed that defendant was not present at the initial attack on Ms.
Kennedy; however, Williams ultimately confessed to his involvement
and inculpated defendant and Bell.
Williams pled guilty to first-
degree murder, first-degree kidnapping, and assault with a deadly
weapon
inflicting
serious
injury.
Williams
testified
at
defendant's trial and was awaiting a capital sentencing hearing at
the time.
Defendant presented testimony from several alibi witnesses who
said defendant was at the Chicopee Trailer Park all day until dark
on 3 January 2000.
Dwayne Ricks testified that he gave defendant
a ride to the Chicopee Trailer Park on the morning of 3 January
2000.
Giovanni Surles testified that he spent the day with
defendant at the Chicopee Trailer Park.
Bessie Surles testified
she saw defendant with Giovanni Surles at the trailer park into the
evening.
Brenda Surles testified that she saw her son, Giovanni
Surles, walking with defendant in the early afternoon and again in
130a
the early evening.
Yolanda Peacock testified that she left the
Chicopee Trailer Park at dark to go to the store to buy cigars for
defendant, but that when she returned around 7:00 p.m. defendant
was no longer there.
Latisha Williams testified she saw defendant
at the Chicopee Trailer Park in the afternoon, but that defendant
left as it was getting dark.
Latisha Williams further testified
that Bell and Williams arrived in a Cadillac looking for defendant,
and that when she saw the Cadillac again, defendant was in the
Cadillac with Bell and Williams.
Several of these alibi witnesses
also testified that Bell and Williams arrived at the trailer park
later in the evening driving a Cadillac and that defendant left
with Bell and Williams in the Cadillac.
Brenda Surles also
testified that it takes about twenty-five to thirty minutes to
drive from the Chicopee Trailer Park to the Newton Grove traffic
circle.
Defendant also presented testimony of Antowean Darden (Darden)
that Bell had approached Darden about renting a car, but Darden
denied that he had seen defendant, Bell, or Williams at the Newton
Grove traffic circle on the night of 3 January 2000.
On cross-
examination, Darden admitted that he named defendant, Bell, and
Williams as possible suspects in the murder at a law enforcement
roadblock on 4 January 2000.
Defendant's girlfriend, Krystal
Elliot, testified that Williams had called her from jail to tell
her that defendant was not with Williams and Bell when they
abducted Ms. Kennedy from her home.
Defendant has failed to put forth an argument in support of
assignments of error one through six and twelve through twenty-two;
131a
pursuant to N.C.R. App. P. 28(b)(6) we deem those assignments of
error to be abandoned.
I.
[1] Defendant challenges the admission into evidence of a rag
found in the back seat area of the Cadillac and the scientific
analysis of this rag, which concluded that the rag contained Ms.
Kennedy's blood as well as traces of defendant's semen.
Defendant
also contends that reference in the State's opening and closing
arguments to the rag and to the traces of defendant's semen on the
rag was error.
Defendant objected at trial to the admission of the rag and
its scientific analysis, arguing that under N.C. Gen. Stat. § 8C-1,
Rule 403, the probative value of the evidence was substantially
outweighed by its prejudicial effect, by its possibility to mislead
the jury, and by the cumulativeness of the evidence.
Whether to
exclude relevant evidence under N.C.G.S. § 8C-1, Rule 403 is in the
trial court's discretion; we review the trial court's decision for
an abuse of that discretion.
State v. Handy, 331 N.C. 515, 532,
419 S.E.2d 545, 554 (1992).
"A trial court may be reversed for an
abuse of discretion only upon a showing that its ruling was so
arbitrary that it could not have been the result of a reasoned
decision."
State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747
(1985).
Defendant argues that the rag and the analysis indicating the
presence of defendant's semen and Ms. Kennedy's blood on the rag
were duplicative evidence of defendant's presence in the Cadillac.
Defendant contends the probative value of the evidence was minimal
132a
because there was testimony by Williams that defendant was in the
Cadillac, as well as physical evidence of defendant's fingerprints
on the outside of the Cadillac, a head hair from defendant found in
the Cadillac, and castings of defendant's footprints found around
the Cadillac.
We disagree.
Defendant's theory at trial was that although he was in the
Cadillac, he joined Bell and Williams only after Ms. Kennedy had
been kidnapped, that he was unaware of her kidnapping, and that he
simply went along for the ride.
Defendant's hair and fingerprints
were found in the Cadillac and he stipulated that he was in the
vehicle.
This evidence is consistent with both defendant's theory
that he just went along for the ride and with the State's theory
that defendant actively participated. However, Williams' testimony
indicated that defendant was an active participant in the events.
Defendant attempted to discredit Williams' testimony.
Williams
testified that defendant went into defendant's brother's house and
returned with a damp rag to wipe down the back seat because Ms.
Kennedy's blood was on the seat.
The fact that a rag, covered with
Ms. Kennedy's blood, was found in the Cadillac is evidence that the
seat was indeed wiped down with a rag.
The traces of defendant's
semen on the rag further corroborate Williams' testimony, because
defendant's DNA in his semen tends to identify defendant as the
person who obtained and used the rag to wipe away Ms. Kennedy's
blood.
Defendant's use of the rag to wipe down the backseat also
tends to show defendant had knowledge of the kidnapping and, by
helping to cover up the kidnapping, he was an active participant in
the series of events.
Thus we find there was indeed probative
133a
value to the evidence, and that it was not simply duplicative of
the other evidence placing defendant in the Cadillac.
Defendant also argues that despite any probative value the
evidence may have had, it was substantially outweighed by the
prejudice it created because of the inference that a sexual assault
of Ms. Kennedy may have occurred due to the presence of semen on
the rag.
However, as the trial court stated several times, there
was no evidence of sexual assault in the record, and the trial
court instructed the jury that the rag was not to be used as
evidence of a sexual assault given the fact that there was no other
evidence that any such sexual assault occurred.
Despite the fact
that the State, out of the presence of the jury, contested the
trial court's admonishment not to argue that the rag was evidence
of a sexual assault, the State never made any such argument to the
jury.
We find that in the present case the probative value of the
rag and the scientific analysis of the rag was not substantially
outweighed by the danger of undue prejudice or misleading the jury.
The trial court did not err in exercising its discretion in
admitting the rag and the scientific analysis of the rag, which
indicated the presence of defendant's semen.
[2] Defendant also cites as error the trial court's failure to
sustain defendant's objection to the State's use of, in its closing
argument, the evidence of the rag and the scientific analysis of
the
rag
revealing
Kennedy's blood.
the
presence
of
defendant's
semen
and
Ms.
"The standard of review for improper closing
arguments that provoke timely objection from opposing counsel is
whether the trial court abused its discretion by failing to sustain
134a
the objection."
106 (2002).
State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97,
In order to show an abuse of discretion, defendant
must show that the trial court's failure to sustain defendant's
objection
"'could
not
have
been
the
result
of
a
reasoned
decision.'" Id. (quoting State v. Burrus, 344 N.C. 79, 90, 472
S.E.2d 867, 875 (1996)).
"'Trial counsel is allowed wide latitude
in argument to the jury and may argue all of the evidence which has
been
presented
therefrom.'"
as
well
as
reasonable
inferences
which
arise
State v. Hyde, 352 N.C. 37, 56, 530 S.E.2d 281, 294
(2000), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d. 775 (2001)
(quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721
(1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999)).
As discussed above, the rag and the scientific analysis of the
rag were properly admitted into evidence.
The State used this
evidence in its closing argument to argue only that defendant knew
Ms. Kennedy had been kidnapped and that he participated in the
events.
Additionally,
as
discussed
above,
the
trial
court
instructed the jury not to consider the evidence of the presence of
semen on the rag as evidence of sexual assault.
The trial court
did not abuse its discretion by allowing the State in its closing
argument to comment on the rag and the scientific analysis of the
rag, including the presence of defendant's semen.
Defendant also challenges the trial court's failure to sustain
defendant's objection to the mention of the semen in the State's
opening statement. The district attorney, in the pertinent portion
of the State's opening statement, said as follows:
The evidence will show, members of the jury,
that at least five types of evidence will
135a
prove that [defendant] and Bell were, in fact,
in Ms. Kennedy's car.
Number one, you will
have fingerprints; two, foot tracks; three,
hair; four, you will have blood evidence;
five, semen.
Defendant objected to this statement and the trial court overruled
the objection. The district attorney continued, "DNA evidence will
prove the red washcloth – found in the backseat of Ms. Kennedy's
car had [defendant's] semen on it," to which defendant objected and
was overruled.
Defendant has not shown how it was error to allow the State to
make these statements concerning the rag and the semen found on the
rag in its opening statement.
Defendant argues that the State
promised not to mention the rag in its opening statement; however,
the transcript reveals this contention to be incorrect.
The State
simply stated that as to the rag, the State would refer to it as a
factual matter, not in an argumentative fashion, in its opening
statement.
Since the evidence of the rag and the scientific
analysis of the rag was properly admitted by the trial court, it
was not improper for the State to refer to the rag in a factual
manner as it did during its opening statement.
The trial court did
not err in overruling defendant's objections to the mention of the
rag in the State's opening statement.
We overrule defendant's
first argument.
II.
[3] Defendant assigns error to the following portion of the
State's closing argument:
He who hunts with the pack is responsible
for the kill.
Each of you have seen those
nature
shows: Discovery
Channel,
Animal
Planet. You've seen where a pack of wild dogs
136a
or hyenas in a group attack a herd
wildebeests, and they do it as a group.
of
When they take that wildebeest, one of
them might be the one that chases after it and
grabs the leg of the wildebeest, slows them
down.
Another one might be out fending off
the wildebeests that are coming and making
their counterattacks. You have another that
will be the one that actually grasps its jaws
about
the
throat
of
the
wildebeest,
ultimately, crushing the throat and taking the
very life out of that animal.
He who hunts with the pack is responsible
for the kill.
Each and every one of those
animals are responsible for that kill. Each
and every one of those animals will feast on
the spoils of that kill. He who hunts with
the pack is responsible for the kill.
Just like the predators of the African
plane [sic], Chad Williams, [defendant], and
Christopher Bell stalked their prey.
They
chased after their prey. They attacked their
prey. Ultimately, they fell their prey.
Just like the predators of the African -At that point in the State's closing argument defendant objected
and asked to approach the bench.
After discussion outside the
presence
court
of
the
jury,
the
trial
overruled
defendant's
objection that the State was referring to defendant as a hyena and
an animal of the African plain; however, the trial court admonished
the State to be very careful not to refer to defendant as an animal
or to make any such inference.
The State then continued its
closing argument:
Just like the animals in the African
plane [sic], after having felled their victim,
they dragged their victim away; and, finally,
they killed their victim.
. . .
You know, in the wild kingdom, there is
always an animal, just like human beings –
137a
think about it.
You get a group of people
together; there is always one person that
makes the decision. We're going to go to this
place. This is the one that decides what to
do. You have the leader. . . .
The same way in the animal world.
called the alpha male, the dominant male.
all know that. You've seen that.
Its
You
Chad Williams was not the alpha male.
Chad Williams was not and is not the dominant
male. Do you know what? It doesn't matter.
When you run with the pack, you are
responsible for the kill.
[Defendant] ran with the pack. He acted
in concert with Christopher Bell and Chad
Williams; and as a result, he . . . is guilty
of these crimes.
The State argues that the use of the phrase, "he who hunts
with the pack is responsible for the kill," is a long accepted
explanation of the theory of acting in concert.
The State cites
State v. Knotts, 168 N.C. 173, 187, 83 S.E. 972, 979 (1914), where
our Supreme Court used the phrase to help illustrate just such a
legal theory.
Then, in State v. Lee, our Supreme Court again
addressed the use of this phraseology stating,
[t]he isolated phraseology "[h]e who hunts
with the pack is responsible for the kill,"
objected to by defendant, was intended as an
illustrative
statement
of
the
law
of
conspiracy.
It is highly unlikely that the
statement was considered by the jury as
anything other than an illustration of the
law. When considered in the context in which
it was used it had no prejudicial effect on
the result of the trial and was therefore
harmless.
Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970).
In State v. Cogdell, 74 N.C. App. 647, 652, 329 S.E.2d 675,
678-79 (1985), this Court confronted the same language in the
context of jury instructions. This Court held, basing our decision
138a
on Lee, 277 N.C. 205, 176 S.E.2d 765, that the defendant's counsel
in that case did not act in an incompetent manner by failing to
object to the phrase included in the jury instructions; and further
held, with little discussion, that it was not reversible error for
the trial court to give such an instruction.
Cogdell, 74 N.C. App.
at 652, 329 S.E.2d at 678-79.
As discussed above, in isolation the statement, "he who hunts
with the pack is responsible for the kill," has been held not to be
reversible error. Further, in at least one case, our Supreme Court
has used almost identical language as an explanation for the theory
of acting in concert.
Knotts, 168 N.C. at 187, 83 S.E. at 979.
However, the district attorney in the present case went beyond
simply making an isolated statement using the "he who hunts with
the pack" analogy.
In the present case, although the district
attorney did not specifically call defendant, Williams, and Bell
"wild
dogs
or
hyenas"
hunting
on
the
"African
plain,"
the
association was sufficiently close to lead to such an inference.
This is especially true, given the fact that defendant is AfricanAmerican, and in light of multiple references to hunting on the
"African plain," even after the trial court warned the district
attorney to be careful in his references.
The district attorney's
further references to Bell as the "alpha male" and his references
to defendant and Williams as followers in the pack, continued this
close association with the animal kingdom, moving beyond a simple
analogy to help explain the theory of acting in concert.
In the present case, we find these arguments by the district
attorney to be improper.
However, in order for defendant to be
139a
entitled to a new trial, the district attorney's statements must
have "'so infected the trial with unfairness as to make the
resulting conviction a denial of due process.'" State v. McCollum,
334 N.C. 208, 223-24, 433 S.E.2d 144, 152 (1993), cert. denied, 512
U.S. 1254, 129 L. Ed. 2d 895 (1994) (quoting Darden v. Wainwright,
477 U.S. 168, 181, 91 L. Ed. 2d 144, 157 (1986)).
In McCollum, our
Supreme Court found that improper statements made during the
State's closing arguments did not deny the defendant due process,
stating:
The prosecutor's arguments here did not
manipulate or misstate the evidence, nor did
they implicate other specific rights of the
accused such as the right to counsel or the
right to remain silent.
The trial court
instructed the jurors that their decision was
to be made on the basis of the evidence alone,
and that the arguments of counsel were not
evidence.
Moreover, the weight of the
evidence against the defendant . . . submitted
to the jury was heavy . . . . All of these
factors reduced the likelihood that the jury's
decision was influenced by these portions of
the prosecutor's closing argument. Therefore,
the prosecutor's closing argument did not deny
the defendant due process.
McCollum, 334 N.C. at 224-25, 433 S.E.2d at 152-53.
is similarly applicable to the present case.
This analysis
The State did not
misstate the evidence or the law in making its argument.
The trial
court similarly instructed the jury that closing arguments are not
evidence.
In addition, there was an abundance of evidence, both
physical and testimonial, that defendant was guilty of the crimes
charged.
We find that, although improper, the district attorney's
comments did not deny defendant due process entitling him to a new
trial.
This assignment of error is overruled.
III.
140a
[4] Defendant also assigns error to the district attorney's
statement during closing argument that, "If you are going to try
the devil, you have to go to hell to get your witnesses."
assignment of error is without merit.
This
Our Supreme Court, as well
as this Court, have held that practically the same exact statement
made during the State's closing argument was not reversible error.
See State v. Sidden, 347 N.C. 218, 229, 491 S.E.2d 225, 230 (1997),
cert. denied, 523 U.S. 1097, 140 L. Ed. 2d 797 (1998) (noting that,
even though the prosecutor in effect said the defendant qualified
as the devil, because of the context of the statement, "the jury
could [not] have thought the prosecutor believed the defendant was
the devil" but that he was simply a "bad man"); State v. Willis,
332 N.C. 151, 171, 420 S.E.2d 158, 167 (1992) (noting that "the
district attorney was [not] characterizing [the defendant] as the
devil," but merely "used this phrase to illustrate the type of
witnesses which were available in a case such as this one"); State
v. Hudson, 295 N.C. 427, 435-37, 245 S.E.2d 686, 692 (1978) (noting
the prosecutor's argument which included a similar statement, was
"within the recognized bounds of propriety"); State v. Joyce, 104
N.C. App. 558, 573-74, 410 S.E.2d 516, 525 (1991), cert. denied,
331 N.C. 120, 414 S.E.2d 764 (1992) (noting this phraseology has
been held not to constitute prejudicial error); State v. Rozier, 69
N.C. App. 38, 58, 316 S.E.2d 893, 906, cert. denied, 312 N.C. 88,
321 S.E.2d 907 (1984) ("Taken in context, the prosecutor's metaphor
falls short of the direct name-calling, or vituperative hyperbole,
which has been found to be reversible error in other cases.")
(citations omitted).
Despite the fact that in some contexts such
141a
a statement by a district attorney may be inappropriate, given the
overwhelming evidence of defendant's guilt, defendant has not shown
how the district attorney's statement constituted prejudicial error
meriting a new trial.
This assignment of error is overruled.
No error in part; no prejudicial error in part.
Judge HUDSON concurs.
Judge WYNN concurs with a separate opinion.
WYNN, Judge concurring.
I agree with the majority’s holding that no prejudicial error
occurred in the proceedings below; however, I write separately
because
I
believe
the
trial
court
abused
its
discretion
in
admitting evidence regarding the presence of semen on a rag.
Under N.C. Gen. Stat. § 8C-1, Rule 403, Defendant objected to
the admittance of any evidence regarding the semen and its DNA
analysis and to the mentioning of said evidence in the opening and
closing statements.
relevant
evidence
Rule 403 allows discretionary exclusion of
“if
its
probative
value
is
substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.”
Defendant contends the probative value of the rag and the
analysis indicating the presence of Defendant’s semen was minimal,
was substantially outweighed by unfair prejudice, and constituted
duplicative evidence of his presence in the car.
The majority
opinion holds that even though Defendant stipulated to his presence
in the vehicle, the presence of semen on the rag tended to indicate
142a
that Defendant was the person who used the rag to wipe down the
backseat and was therefore an active participant in the kidnapping
and murder.
Therefore, according to the majority, the admittance
of this evidence was not an abuse of discretion.
I respectfully
disagree.
The pertinent facts indicate Christopher Bell, Chad Williams,
and Defendant kidnapped Ms. Kennedy, stole her car, drove the car
to a place designated by Bell, caused Ms. Kennedy to bleed by
pistol-whipping
her,
and
placed
her
in
the
trunk.
Sometime
thereafter, the State’s evidence also tended to show Defendant
drove
to
his
brother’s
home,
obtained
a
rag,
and
wiped
Ms.
Kennedy’s blood from the back seat.
Scientific analysis revealed the rag contained Ms. Kennedy’s
blood and semen belonging to either Defendant or Defendant’s
brother, who was not a party to this crime.
The tests did not
indicate how long the semen had been present on the rag.
No
evidence of semen was located on Ms. Kennedy’s clothing or her
person and there was no evidence of a sexual assault.
The State argued that the presence of Defendant’s semen on the
rag indicated Defendant wiped up the blood and was therefore an
active participant in the kidnapping and murder.
However, under
these facts, the presentation of any semen evidence was unnecessary
as there was more than sufficient evidence of Defendant’s presence
and
active
participation
in
this
crime.
stipulated to his presence in the car.
Indeed,
Defendant
Moreover, other evidence
indicates that Defendant drove the car, chose the abandonment
location near his brother’s home, obtained the rag used to wipe up
143a
the blood, and returned to the scene of the crime in order to cover
up his fingerprints.
The evidence also indicates the three men
spent the night of the kidnapping and murder and several days
thereafter at Defendant’s brother’s home.
The day after the
murder, the three men returned to the abandoned car in order to
cover up any evidence of their crime.
Under the facts of this
case, the probative value of the semen evidence was minimal.
On
the
other
hand,
the
evidence was significant.
prejudicial
effect
of
the
semen
The presence of semen on the rag
indicates sexual activity occurred at some point.
However, when
such activity, by whom such activity, and with whom such activity
occurred is uncertain.
No semen was found on Ms. Kennedy’s person
or clothing and there was no other evidence of sexual assault.
The
rag
from
belonged
to
Defendant’s
Defendant’s brother’s home.
brother
and
was
obtained
The DNA analysis could not exclude
Defendant’s brother as the source of the semen and the analysis
could not indicate how long the semen had been present on the rag.
Nevertheless, the State argued several times to the Court that the
jury should be allowed to infer the men kidnapped Ms. Kennedy for
the purpose of sexual gratification.
In the absence of any
evidence of sexual assault and given the overwhelming evidence of
Defendant’s presence in the car and active participation in this
crime, the probative value of the semen evidence was substantially
outweighed
by
unfair
prejudice
and
constituted
duplicative
evidence.
Accordingly, I conclude the trial court abused its
discretion in admitting the semen evidence and allowing the State
to mention said evidence in its opening and closing arguments.
144a
However, the overwhelming evidence of Defendant’s presence in
the car and active participation in the crime renders the trial
court’s
abuse
Patterson,
of
103
(1991)(stating
discretion
N.C.
that
non-prejudicial.
App.
195,
205-06,
405
“under
G.S.
15A-1443(a)
See
State
v.
S.E.2d
200,
207
defendant
must
a
demonstrate that there is a reasonable possibility that had the
error in question not been committed, a different result would have
been
reached
at
the
trial
out
of
which
the
appeal
arises).
Moreover, the trial court gave a curative instruction limiting jury
consideration of the evidence to that of identification of the
perpetrator
and
corroboration
of
the
State’s
evidence
and
specifically prohibited the use of such evidence as proof of sexual
assault of the victim.
Accordingly, I would hold the trial court
committed non-prejudicial error.
145a
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-45
Filed: 7 August 2018
Onslow County, Nos. 01 CRS 2993–95
STATE OF NORTH CAROLINA
v.
ANTWAUN SIMS
Appeal by defendant from order entered 21 March 2014 by Judge Jack W.
Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 17 October
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N.
Callahan, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
Andrews, for defendant-appellant.
BRYANT, Judge.
Where the trial court complied with the statutory requirements in determining
that life imprisonment without parole was warranted for defendant, we hold the
sentence is not in violation of the Eighth Amendment. Where the trial court properly
made ultimate findings of fact on each of the Miller factors as set forth in section 15A1340.19B(c), we hold that the trial court did not abuse its discretion in weighing those
factors and concluding that life imprisonment without parole was appropriate in
defendant’s case.
146a
STATE V. SIMS
Opinion of the Court
In the instant case, the trial court incorporated the facts as articulated by this
Court in State v. Sims, 161 N.C. App. 183, 184–189, 588 S.E.2d 55, 57–60 (2003), into
its order from which defendant appeals.1 The facts are as follows:
[D]efendant [Antwaun Sims, who was seventeen at the
time of the offense,] was with Chad Williams . . . and Chris
Bell . . . in Newton Grove, North Carolina on 3 January
2000, when Bell said that the group needed to rob someone
to get a car so Bell could leave the state to avoid a probation
violation hearing. Defendant agreed to assist Bell.
Defendant, Bell, and Williams observed Elleze Kennedy
(Ms. Kennedy), an eighty-nine-year old woman, leaving the
Hardee’s restaurant . . . around 7:00 p.m. Ms. Kennedy got
into her Cadillac and drove to her home a few blocks away.
Defendant, Bell, and Williams ran after Ms. Kennedy’s car
. . . until they reached [her] home. Bell approached Ms.
Kennedy in her driveway with a BB pistol and demanded
Ms. Kennedy’s keys. Ms. Kennedy began yelling and Bell
hit her in the face with the pistol, knocking her to the
ground. Bell told defendant and Williams to help him find
the keys to Ms. Kennedy’s Cadillac. After rifling through
Ms. Kennedy’s pockets, Williams found the keys on the
carport and handed them to defendant who agreed to drive.
Bell told defendant and Williams to move Ms.
Kennedy to the back seat of the Cadillac. . . . Ms. Kennedy
kept asking Bell where he was taking her. Bell responded
by telling her to shut up and striking her in the face several
times with the pistol. . . .
After driving, . . . defendant, Bell, and Williams put
Ms. Kennedy, who was unconscious at the time, in the
trunk of the Cadillac. . . .
....
[Later], Williams told defendant and Bell that he
was not going to travel in a stolen car to Florida with an
1 This Court has previously summarized the facts of this case for defendant’s direct appeal in
State v. Sims, 161 N.C. App. 183, 184–189, 588 S.E.2d 55, 57–60 (2003).
-2-
147a
STATE V. SIMS
Opinion of the Court
abducted woman in the trunk. . . .
....
Williams asked if they could let her go, but Bell replied,
“Man, I ain’t trying to leave no witnesses. This lady done
seen my face. I ain’t trying to leave no witnesses.” Bell
asked defendant for a lighter to burn Bell’s blood-covered
jacket. Defendant gave Bell his lighter and Bell set the
jacket on fire and threw it into the Cadillac. Bell stayed to
watch the fire, but defendant and Williams walked . . . to
defendant’s brother’s house to watch television. . . . The
next morning Bell told defendant to go back to the car and
confirm that Ms. Kennedy was dead, and that if she was
not, defendant should finish burning the Cadillac.
Defendant returned and told Bell and Williams that Ms.
Kennedy was dead and that all of the windows in the
Cadillac were smoked. . . .
....
Ms. Kennedy’s Cadillac was found by law
enforcement the morning after her abduction.
Investigators discovered Ms. Kennedy’s body in the trunk.
They made castings of footprints found in the area of the
abandoned Cadillac. The castings were later compared to,
and matched, shoes taken from defendant. . . .
Investigators recovered a red cloth from the backseat
floorboard, which was later identified as the one defendant
had used to wipe down the backseat of the Cadillac. Tests
of the cloth showed traces of defendant's semen and Ms.
Kennedy's blood. Police found two hairs in the backseat
area of the Cadillac, one of which was later determined to
be defendant's and the other Bell's. Police also matched
latent fingerprints found on the Cadillac with prints taken
from defendant and Bell.
....
Forensic pathologist Dr. Falpy Carl Barr (Dr. Barr)
-3-
148a
STATE V. SIMS
Opinion of the Court
testified that he conducted Ms. Kennedy’s autopsy on 5
January 2000. . . . Dr. Barr testified that Ms. Kennedy was
struck multiple times with a weapon, leaving marks
consistent with a pellet gun . . . . Dr. Barr testified that
because of the extent of the soot in her trachea and lungs
he believed that she was alive and breathing at the time
the fire took place in the vehicle; however, because of Ms.
Kennedy’s elevated carbon monoxide level, Dr. Barr came
to the conclusion that Ms. Kennedy died as a result of
carbon monoxide poisoning from a fire in the Cadillac.
Id.
Defendant was arrested and later indicted for first-degree murder, assault
with a deadly weapon inflicting serious injury, first-degree kidnapping, and burning
personal property. On 14 August 2001, defendant was tried capitally in the Criminal
Session of Onslow County Superior Court, the Honorable Jay Hockenbury, Judge
presiding.2 Defendant was convicted of first-degree murder, first-degree kidnapping,
and burning of personal property. At his sentencing hearing, the jury unanimously
recommended that defendant be sentenced to life imprisonment without parole, as
opposed to death, and the trial court entered judgment. Defendant appealed to this
Court, which found no error in defendant’s conviction.
On 4 April 2013, defendant filed a motion for appropriate relief requesting a
new sentencing hearing in light of the United States Supreme Court’s decision in
2 Defendant was tried with Bell and Williams as co-defendants. Williams entered a guilty plea
to first-degree murder, first-degree kidnapping, burning personal property, and assault with a deadly
weapon inflicting serious injury for his role in Ms. Kennedy’s death and testified at trial against
defendant and Bell. Williams and defendant were sentenced to life without parole. Bell was sentenced
to death upon the jury’s recommendation.
-4-
149a
STATE V. SIMS
Opinion of the Court
Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012), which held that mandatory
life without parole for juvenile offenders violates the Eighth Amendment’s prohibition
of cruel and unusual punishment. By order entered 2 July 2013, the trial court
granted defendant’s motion for appropriate relief and ordered a rehearing pursuant
to Miller as well as our North Carolina General Assembly’s enactment of N.C. Gen.
Stat. § 15A-1340.19B, 2012 N.C. Sess. Laws 2012-148, § 1, eff. July 12, 2012 (stating
that a defendant who is less than eighteen years of age who is convicted of first-degree
murder pursuant to premeditation and deliberation shall have a hearing to determine
whether the defendant should be sentenced to life imprisonment without parole or
life imprisonment with parole).
On 20 February 2014, the Honorable Jack Jenkins, Special Superior Court
Judge, conducted a hearing and ordered that “defendant’s sentence is to remain life
without parole.” Defendant appealed. On 28 September 2016, this Court issued a
writ of certiorari for the purpose of reviewing the resentencing order.
_________________________________________________________
On appeal, defendant contends the trial court (I) violated his Eighth
Amendment constitutional protection against cruel and unusual punishment by
imposing a sentence of life without parole; and (II) erred by imposing a sentence of
life without parole because the trial court failed to make findings on the presence or
-5-
150a
STATE V. SIMS
Opinion of the Court
absence of Miller factors and the findings it did make do not support the conclusion
that the sentence was warranted.
I
Defendant first argues the trial court violated his constitutional protections
against cruel and unusual punishment by imposing a sentence of life without parole.
We disagree.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009). The
prohibition of cruel and unusual punishment under the Eighth Amendment forbids
entering sentences “that are grossly disproportionate to the crime.” State v. Thomsen,
242 N.C. App. 475, 487, 776 S.E.2d 41, 49 (2015), aff'd, 369 N.C. 22, 789 S.E.2d 639
(2016) (quoting Harmelin v. Michigan, 501 U.S. 957, 959, 115 L. Ed. 2d 836 (1991).
The jurisprudence of the Eighth Amendment as it applies to juveniles recognizes that
juvenile offenders are categorically distinguishable from adult offenders because of
their “diminished culpability and greater prospects for reform.” Miller, 567 U.S. at
471, 183 L. Ed. 2d at 418. Nevertheless, courts continue to balance their interests in
enforcing suitable punishments for juveniles proportionate to the crime while also
maintaining fairness to juvenile offenders.
Miller v. Alabama “drew a line between children whose crimes reflect[ed]
transient immaturity and those rare children whose crimes reflect[ed] irreparable
-6-
151a
STATE V. SIMS
Opinion of the Court
corruption.” Montgomery v. Louisiana, 577 U.S. ___, ____, 193 L. Ed. 2d 599, 620
(2016), (as revised Jan. 27, 2016). The United States Supreme Court ruled that
imposing a mandatory life sentence without the possibility of parole for juvenile
offenders violates the Eighth Amendment and “a judge or jury must have the
opportunity to consider mitigating circumstances.” Miller, 567 U.S. at 489, 183 L.
Ed. 2d at 430; also see id. at 476, 183 L. Ed. 2d at 422 (“Such mandatory penalties,
by their nature, preclude a sentencer from taking account of an offender's ag
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