Appeals as of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing death penalties entered by Barnette, J., at the 28 September 1987 Criminal Session of Superior Court, Robeson County, upon jury verdicts finding defendants guilty of first degree murder.
The defendant Willis' first assignment of error deals with a pre-trial motion. Willis made a motion to prohibit the State from exercising peremptory challenges to jurors "based on group bias." The defendant contended he was an Indian which made him a member of a cognizable racial group and entitled him to object to peremptory challenges to jurors on racial grounds under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986).
A hearing was held on Willis' motion. He testified that his father was white and his mother was an Indian. His birth certificate showed he was white. His driver's license and school records also showed him to be white but he testified these notations were taken from his birth certificate.
At the end of the hearing, the court made the following finding, "this motion is probably premature at this time . . . I will just make this ruling. I cannot find that the defendant is a member of a cognizable racial minority[.]" The court denied Willis' motion.
The defendant Willis says that there was error in the conduct of the voir dire hearing because the court sustained the objections of the State to his testimony in regard to the race with which he principally associated, of which race he considered himself to be, and some of the forms and applications he had filed which showed his race.
Assuming it was error to sustain the objections to this testimony by defendant Willis and that it was error for the court to hold that it could not find Willis was a member of a cognizable minority, we cannot hold this was prejudicial error. The State exercised nine peremptory challenges to which Willis objected. The record does not show the race of the juror as to any of these challenges. An appellant must make a record which shows the race of a challenged juror in order to show purposeful discrimination. State v. Mitchell, 321 N.C. 650, 365 S.E.2d 554 (1988). No such showing has been made in this case. No prejudicial error can be shown for rulings at the hearings on the motion to bar the exercise of
peremptory challenges on racial grounds. This assignment of error is overruled.
The defendant Willis next assigns error to the denial of his motion to compel the State to disclose any plea bargains made by any of his co-defendants or accomplices. N.C.G.S. § 15A-1054(c) and the Fourteenth Amendment to the Constitution of the United States require that any plea bargain with a person who is to testify against a defendant be disclosed to the defendant. Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104 (1972).
In this case there is nothing in the record to indicate that a plea bargain had been made by any witness against the defendants. Each of the co-defendants and accomplices who testified said he had not entered into a plea bargain. It was not error to deny this motion because there was no showing of a plea bargain. This assignment of error is overruled.
The defendant Willis assigns error to the denial of his motion to dismiss the charge against him for a violation of his right to a speedy trial under the Speedy Trial Act, N.C.G.S. § 15A-701, and a violation of his right to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution of the United States. The Speedy Trial Act applies to this case although it was repealed after the case was tried. See State v. Coker, 325 N.C. 686, 386 S.E.2d 196 (1989). The Speedy Trial Act required that the defendant be tried within 120 days of the date the defendant was arrested, served with criminal process, waived indictment or was indicted, whichever occurred last, unless that time was extended by certain specified events. Among those events is the delay from the time a pretrial motion was made until a Judge made a final ruling on the motion. See State v. Kivett, 321 N.C. 404, 364 S.E.2d 404 (1988).
In this case, the record shows the defendant made a motion for discovery on 27 August 1986, which was prior to the date the bill of indictment was returned on 29 September 1986. The motion was not heard until 2 September 1987. At that time, the defendant's counsel informed the court that discovery had been completed three or four weeks earlier. We held in State v. Marlow, 310 N.C. 507, 313 S.E.2d 532 (1984), that when a motion, which tolls the running of the time under the Speedy Trial Act, is made before the bill of indictment is returned, the excluded time begins when the indictment is returned. In this case, the excluded period began on 29 September 1986 and ran at least until discovery was
completed which was three or four weeks before 2 September 1987. The trial commenced on 28 September 1987 which was within the 120 day period as required by the Speedy Trial Act.
We also hold that the defendant Willis' right to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution of the United States was not violated. In determining whether a delay in a trial violates the Sixth Amendment, interrelated factors which must be examined are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice resulting from the delay. State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978); State v. Smith, 289, N.C. 143, 221 S.E.2d 247 (1976); State v. Jackson, 287 N.C. 470, 215 S.E.2d 123 (1975). The length of the delay is not by itself the determining factor. In this case, the record shows discovery was not complete until August 1987 and the trial was commenced in September. There is not an intimation that the delay was oppressive to the defendant or that he was prejudiced by the delay. His Sixth Amendment right to a speedy trial was not violated. This assignment of error is overruled.
In his next assignment of error, the defendant Willis contends he was unduly restricted in his voir dire examination of the jury. Two of the prospective jurors stated unequivocally that they could under no circumstances vote for the death penalty. The defendant's attorney then attempted to rehabilitate these two jurors by asking whether they could apply the law as given to them by the Judge. The court sustained objections to these questions and allowed the State's challenge for cause to the two prospective jurors. There is nothing in the record to indicate that either of the two excused jurors could have given different answers if questioned further as to their inabilities to vote for the death penalty. The court did not abuse its discretion when it sustained the objections to further questioning and allowed the challenges for cause. State v. McNeil, 324 N.C. 33, 375 S.E.2d 909 (1989), sentence vacated, 494 U.S. 1050, 108 L. Ed. 2d 756, on remand, 327 N.C. 388, 395 S.E.2d 106 (1990).
One of the prospective jurors stated that because he knew the defendant Willis "so well" the State would have to satisfy him beyond a shadow of a doubt before he would vote to find Willis guilty. He said he knew the difference between beyond a shadow of a doubt and beyond a reasonable doubt which is that
"one [was] less than the other." The court then sustained an objection to a question by Willis' attorney as to whether the juror could apply the law as given to him by the court and allowed the State's challenge for cause. In this we find no error. It was not an abuse of discretion for the court to stop the questioning of this juror and excuse him after he had answered as he did. State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987).
Finally, defendant Willis says it was error to sustain an objection to the question, "how do you feel about a life sentence as opposed to a death sentence in a case where a person is convicted of first degree murder?" The juror had previously stated that she was not opposed to the death penalty, but she did not think the death penalty was necessarily appropriate in every case in which a defendant was convicted of first degree murder. In light of this answer, the defendant should have been able to get what information he needed although the objection was sustained to his later question. This assignment of error is overruled.
In his next assignment of error, defendant Willis argues that two witnesses were allowed to testify as to statements that nontestifying persons made to them which incriminated him in violation of the rule of Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968).
Tony Owens testified for the State that approximately one week before Jerry Richardson was killed, he was at a motel in Kure Beach. The defendant Willis was with him, as was Michael Johnson and the defendant Cox. Cox told the three men they would have to leave because Jerry Richardson was coming. They left and went to a motel in Wilmington. Mr. Owens testified that he, the defendant Willis and a woman named Tracie Phillips returned to the motel in Kure Beach. The defendant Cox was there and the four of them made plans to kill Jerry Richardson. While they were out of the presence of the defendant Willis, Cox asked Owens if he thought Willis loved her and what would Willis think if she were pregnant. Owens told Cox he thought Willis loved her and would be happy if she were pregnant. Owens testified further that he and Cox then went into a room at the motel with Willis and Tracie Phillips and the four of them discussed how they would divide Mr. Richardson's jewelry after they had killed him. Cox said she wanted his most expensive ring and one other ring. The four of them also talked about what they would do with the money
they expected Mr. Richardson would be carrying. They planned to use it to deal in drugs. Cox said, "there's good money in cocaine."
Owens also testified that the four of them left Kure Beach and went to Cox's home in Robeson County where she told them that Richardson would call her that day and would be upset because she would not be at home. The four of them then went to a field where they drank vodka and smoked marijuana. While they were in the field Cox said, "what are we going to do about Jerry tomorrow night?" Willis replied, "you do your part and get him drunk and I'll take care of the rest."
Roy Grooms, who was a co-defendant, testified for the State that he had agreed with the defendant Willis to help him kill Jerry Richardson. During his testimony, he said he was with Cox and Willis on one occasion when Cox said Mr. Richardson had beaten her. He testified that Willis said, "just wait, I'll kick his God damn ass," to which Cox replied, "you had a chance to do that while he had me on the bed, choking me." Grooms also testified that Cox told him that Mr. Richardson "has it fixed" so that in the event he was killed in a wreck "or something" that she would have the house she was living in and a certain sum of money.
Grooms testified further that on one occasion when he was in the company of Willis and Cox when Willis asked Cox whether Mr. Richardson was coming back to the house and she replied that Mr. Richardson was supposed to call her and let her know whether he would meet her at the house or in Fayetteville. Grooms testified that on another occasion Cox was talking on the telephone and when she finished Willis said, "what are you doing, telling her our business?" to which Cox relied, "man, she's cool. She ain't going to say anything."
Grooms also testified that after the first aborted attempt to kill Mr. Richardson he entered Cox's home with Willis and Cox said, "man, after [I] got him drunk and thinking something was going to happen, and you all don't do nothing," to which Willis replied, "don't worry, Baby, it will get done." Finally, Grooms testified that on one occasion he saw Tracie Phillips who told him Mr. Richardson had put her out of Cox's house because he had caught Willis and Tony Owens at the house.
Page 167} Bruton holds that it is a violation of a defendant's rights under the Sixth Amendment of the Constitution of the United States to introduce into evidence a confession of a nontestifying co-defendant which implicates the defendant. The defendant contends that the testimony we have recited violates this rule. The holding of Bruton is based on the right of a litigant to confront the witnesses against him. Consequently, if testimony is admitted under the hearsay rule, or as an exception to it, there is no right of confrontation and Bruton does not prohibit the use of such testimony. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). It is with these principles in mind that we examine this assignment of error.
Some of the testimony to which the defendant Willis takes exception does not implicate him. The testimony of Owens that Cox told Willis, Michael Johnson and Owens they would have to leave the motel because Mr. Richardson was coming to the motel does not implicate defendant Willis in the killing of Mr. Richardson. Neither does the testimony of Owens that Cox asked him whether he thought Willis loved her and whether Willis would be happy if she were pregnant, nor does his testimony that Cox said Mr. Richardson would be upset if she was not at home implicate the defendant Willis. The testimony of Owens that Cox told him she was to have the house and a certain sum of money if Richardson was killed did not implicate Willis. Owens' testimony that Cox told Willis Mr. Richardson would call to tell her whether to meet him at the house or in Fayetteville and his testimony that Tracie Phillips told him Mr. Richardson had put her out of the house did not implicate Willis. This testimony was not barred by Bruton.
In State v. Hardy, 293 N.C. 105, 235 S.E.2d 828, we held that when a statement is made in a person's presence in such circumstances that the person would be naturally expected to deny it if it were not true, the statement is admissible as an implied admission and is not barred by Bruton. Under this rule, the testimony of Mr. Owens was admissible as to what Cox said in the presence of Willis in regard to dividing the jewelry and money after Mr. Richardson had been killed. Under the rule, the testimony of Grooms was admissible that Cox said in the presence of Willis that Willis had had a chance to get Richardson when Richardson was beating her and not to worry about a friend's talking because the friend was "cool." Defendant Willis invited these statements and did not deny them when they were made.
If the State establishes a prima facie case of a conspiracy to commit a crime independently of the declarations sought to be admitted, a statement by a co-conspirator during the course and in furtherance of the conspiracy is admissible and not barred by Bruton. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988). N.C.G.S. § 8C-1, Rule 801(d)(e) (1988). In this case, there was ample evidence, independent of the statements to which Willis now takes exception, of an agreement between Cox and Willis to kill Mr. Richardson. The testimony of Owens that he heard Willis say "you do your part and . . . I'll take care of the rest," as well as the testimony by Grooms that after Cox had complained when the first attempt at killing Mr. Richardson had aborted that Willis said, "don't worry, Baby, it will get done[,]" were admissible under this rule. This assignment of error is overruled.
The defendant Willis next assigns error to the admission of testimony by Tony Owens that on one occasion he left Cox's home with Willis and went to the courthouse in Lumberton to answer a charge of breaking or entering and on another occasion he went with Willis to engage in a fight. This testimony was not relevant to any issue in this case except the defendant Willis' character to show that he had a propensity for bad acts and acted in conformity therewith in killing Mr. Richardson. It should not have been admitted. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988). N.C.G.S. § 8C-1, Rule 404(b) (1988). Although it was error to admit this testimony, we hold it was harmless. In light of the strong substantive evidence against the defendant Willis, as well as other evidence of bad acts including the ingestion of illegal drugs, we cannot hold that the result would have been different had this testimony been excluded. State v. Milby, 302 N.C. 137, 273 S.E.2d 716 (1981); N.C.G.S. § 15A-1443 (1988). This assignment of error is overruled.
The defendant Willis next assigns error to what he contends was an unconstitutional restriction on his right to cross-examine three witnesses. When Tony Owens was testifying, Willis' attorney asked him if the officers had told him during the investigation that it was Willis they wanted. The court sustained the State's objection to this question and Willis says this is error. Later in the cross-examination, the following colloquy occurred:
Q. You have been told that it's James Willis we want on this case and not you, not Roy Grooms; haven't you been told that, sir?
A. I was told they wanted to try the person who killed the man.
Q. Answer my question if you would, sir. Weren't you told by someone that this is the man we want? We don't want you, we want him.
Any error there may have been in sustaining the objection to this question on cross-examination was cured when the witness later answered the same question. State v. Matthews, 299 N.C. 284, 261 S.E.2d 872 (1980).
When Roy Grooms was testifying, the following colloquy occurred on cross-examination:
Q. Mr. Grooms, are you guilty of murder in the first degree of Jerry Richardson?
A. I'm guilty of something. I was there on the Wednesday night. I helped dispose of the body, but I did not kill Jerry Richardson, and ...