Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from three judgments imposing sentences of death entered by Weeks, J., at the 8 July 1991 Criminal Session of Superior Court, Beaufort County. Defendant's motion to bypass the Court of Appeals as to additional judgments allowed by the Supreme Court 24 June 1992.
Defendant Yvette Gay was tried capitally on indictments charging her with the first-degree murders of Louise Farris, Shamika Farris, and William Farris, Jr. (William Jr.); first-degree burglary; conspiracy to commit first-degree burglary and conspiracy to commit murder. The jury returned verdicts finding defendant guilty of all charges. Convictions for the three first-degree murders were based upon the theories of (1) premeditation and deliberation and (2) felony murder. At the capital sentencing proceeding for the first-degree murder convictions, the court submitted three aggravating and twenty-six mitigating circumstances. The sentencing findings were identical in each case and the jury recommended a sentence of death for each first-degree murder conviction. The trial court imposed the death sentences as recommended and imposed additional consecutive sentences of fifteen years, three years, and nine years for the additional convictions. For the reasons discussed herein, we conclude that the guilt phase of defendant's trial was free from prejudicial error. However, we conclude that error occurring in the sentencing phase of defendant's trial requires that she receive a new capital sentencing proceeding in accordance with N.C.G.S. § 15A-2000 (1988).
The State presented evidence tending to show the following. At the time the murders in this case were committed, defendant Yvette Gay was involved in a relationship with Renwick Gibbs (Gibbs) and had been so involved for five or six years. Throughout defendant's relationship with Gibbs, Gibbs was married to Anne Farris (Anne). Gibbs and Anne lived together in a mobile home in Chocowinity during most of their marriage. For about a month prior to the homicides, however, Anne lived in a battered woman's shelter, although during other separations from Gibbs she lived with her parents in the Town of Washington, North Carolina. During the last separation, Gibbs lived with defendant, her two children, and her twin sister, Doris, in a converted bus in Washington.
During this period of separation, on 29 May 1990 at 11:30 p.m., Anne went to her parents' residence in Washington to return their car which she often borrowed. Her father drove her to work and then returned home to bed. The following morning, Mr. Farris awoke at 3:45 a.m. in order to get ready for work. Shortly thereafter he left for work. When Mr. Farris returned to his home shortly after 1:00 p.m., he discovered that his wife and two younger children, William Jr. and Shamika, had been killed.
Gibbs' sister, Deborah Blount, testified that on 30 May 1990 between 9:30 and 10:00 a.m. Gibbs asked her to go with him to town. She declined. At about 11:30 a.m. he again asked her to accompany him to town. She did so. Shortly after noon they drove to the Farris house because Gibbs said he wanted Deborah to talk with Anne. Deborah knocked on the door but no one answered. Gibbs encouraged Deborah to peek inside the window. When she refused, Gibbs stepped out of the car and went to the carport on the side of the house and soon emerged yelling, "My wife, my wife." Deborah could not understand why he was screaming, so she went to the side door and entered the house. She glanced in several rooms before seeing William Jr.'s body and that of a young woman she thought was either Shamika or Anne. Deborah ran to a nearby store and called for the police. Police officers soon arrived. They found the bodies of William Jr., Shamika, and Louise Farris in the house. They had been tied up, gagged, and shot to death. They also found a broken window pane in the carport door and a paper bag, to which cutout magazine letters which read "I told you about slapping my mother" were glued.
SBI Agent Eric Tellefsen testified that he obtained consent to search Gibbs' trailer on the afternoon that the bodies were discovered. There he found a .22 caliber rifle. The next day police arrested Gibbs for the murders. After his arrest, he directed officers to a location where they found a 30-30 rifle which was used in the murders.
Defendant was questioned and gave detectives several differing statements regarding the events of 29 and 30 May 1990. SBI Agent Malcolm McLeod testified that he interviewed defendant while she was at work on the afternoon the bodies were discovered. McLeod informed her that he was there to verify Gibbs' alibi. She told him that Gibbs had been with her throughout the night at the bus after 12:30 a.m.
Agent Tellefsen testified that on 1 June 1990 defendant gave a different statement to detectives at the Washington Police Station. She said that Gibbs was with her at the bus on the evening of 29 May 1990. After they went to bed, Gibbs woke her up and said he had to go somewhere. He told her he was mad at Anne's people for coming between him and Anne. He took out a rifle, ordered her to get bullets for him from the front of the bus and then left. He returned about 6:30 or 7:00 a.m., left again, returned about 10:00 a.m., and left once again.
When Investigator Taylor asked if it was her or her sister who accompanied Gibbs on the night of the murder, defendant said that it had been her. Defendant then gave the officers another statement. This statement was similar to defendant's testimony at trial in that defendant admitted going with Gibbs to the Farris' home. In her statement to the officers, defendant said that two or three weeks before the murders, Gibbs pasted together a note on a brown paper bag. On the day before the murders, Gibbs shot at and attempted to run over and kill the Farris' dog. On the evening of 29 May 1990 Gibbs told defendant that he was going to kill Anne and her family. Gibbs was angry after talking with Anne who told him to go back to his "new wife," referring to defendant. Gibbs woke defendant up around 4:00 a.m. on 30 May 1990. They dressed themselves in dark clothing and Gibbs placed a stocking over each of their heads. Gibbs asked defendant if she was ready. She hesitated and then said yes. He told her that she did not have to go and that he knew that she was scared and did not want to go. She told him she was ready but was concerned about her asthma. She got her asthma spray and the note he had made. At Gibbs' request, she retrieved the .22 rifle for him. Gibbs already had the 30-30 rifle with him. They drove to the Farris house in defendant's car. Upon reaching the house, they saw Mr. Farris leave in his car. Gibbs followed and attempted to overtake Mr. Farris but failed. Gibbs said, "F... it, I'm going to kill the bitch," so they returned to the Farris house. They went up to the house where Gibbs cut the phone lines while defendant held the rifles. Gibbs asked defendant twice if she was ready and she said yes. Gibbs then forced entry into the house through the carport door. There were screams as they entered the house. Gibbs pointed the gun at Mrs. Farris and ordered her to take the children into a bedroom. Gibbs became irritated as Mrs. Farris pleaded with him and Shamika cried. Gibbs ordered one of the victims, William
Jr., to tie up the other victims, Shamika and Mrs. Farris. After Gibbs became irritated with William Jr.'s efforts, Gibbs ordered Shamika to tie up Mrs. Farris. Gibbs then tied up William Jr. while defendant held a gun. There was no reference in defendant's statement that she ever spoke to or bound or gagged anyone. At various times, Gibbs walked to the front of the house to check to see if anyone had driven up. At those times, defendant held a gun on the family while he was gone. Eventually, Gibbs ordered defendant to shoot each person in the head. She said that she could not, so he shot and killed the three victims. Gibbs and defendant went back to the bus, washed up, and put some of their clothing in a paper bag which Gibbs took with him when he drove defendant's twin sister to work. He returned, slept a bit, then left to find Anne.
At trial, defendant's testimony as to the events differed somewhat from this statement. Defendant testified that she was twenty-seven years old at the time of the murders. She was one of six children but she had little contact with any of her family except her twin sister because Gibbs did not want her to have contact with them. She described her relationship with Gibbs as that of boyfriend and girlfriend, except that she was constantly afraid of him. He was physically and verbally abusive to her and had threatened her with a gun on the day before the murders after he attempted to kill the Farris' dog. She testified that she helped Gibbs with spelling when he made the note which he left at the murder scene.
She testified that when Gibbs returned to the bus on 30 May 1990 at 12:30 a.m. he was angry because Anne had said that defendant was going to be Gibbs' new wife. He began to hit defendant and told her that if she ever left him he would kill her. He then told her he was going to kill the Farris family. He told defendant and her twin sister to wake him up at 4:00 a.m. They did not wake him, but when he woke up he realized he had overslept and got angry and hit both women. He made defendant get dressed and, when she was slow getting his gun for him from his car, he got angry and hit her with the barrel. Defendant told him she did not want to go, but he said that she had to go in order to see what it would be like if she left him. As they approached the Farris house Gibbs was carrying the guns. At one point he made defendant hold the guns after warning her not to try anything. He took the guns back. After he cut the telephone wires he asked
her if she was ready. She said she was not. He angrily told her to get ready because she was going in whether she liked it or not. She was scared he would kill her.
They entered the house and heard screaming voices. Gibbs ordered the family members into one room then ordered William Jr. to tie up his mother and Shamika. Gibbs then tied up William Jr. In response to the pleas by the mother, Gibbs told her that he was tired of her coming between him and his wife. After Gibbs ordered defendant to shoot the victims and she refused, Gibbs shot and killed them. Gibbs then turned the gun on defendant and appeared to pull the trigger. He told her he was going to kill her, her family, and "everybody that I was ever involved with. I'm going to kill all of you and then I'm going to kill myself." They left and returned to the bus where they removed their clothes. Gibbs left after telling defendant that he would kill her or her sister if she did anything. When police questioned her at work, she lied to them because she was afraid of what would happen to her or her sister if she talked to them.
Defendant also testified that both she and her sister gave their paychecks to Gibbs, that he sometimes abused her and failed to provide them with food. At the time of the killings, she had not eaten for two days. Defendant was aware that Gibbs wanted to reunite with Anne but said that she loved him and wanted to marry him and live in the trailer he shared with Anne. Defendant acknowledged that she failed to tell the police of Gibbs' threats to her or of his prior abuse. She testified that she had received medical attention twice as a result of his abuse but had said, as instructed by Gibbs, that she had received the injuries by accident.
Psychiatric expert testimony was offered on defendant's behalf. Dr. Bob Rollins testified that defendant was suffering from "atypical dissociative disorder" at the time of the murders which resulted from domination, mistreatment or abuse. He testified that the disorder might commonly be called "brainwashing." He further testified that her reaction to Gibbs was typical of what is seen in the battered spouse syndrome, although they were not married. As a result of the abuse, the expert believed that defendant was essentially a slave to Gibbs. The expert also testified to defendant's mother's mental problems (paranoid schizophrenia) and that mental health records from April 1989 reported her father's suspicion that defendant was being abused by Gibbs.
In rebuttal, the State offered evidence that the officers who interrogated defendant at work saw no injuries to her face or body. The jail matron who processed defendant and an emergency room doctor who saw defendant on 5 June 1990 also saw no signs of injury.
At the capital sentencing proceeding, defendant offered the testimony of three women who knew defendant through their jail ministry. All three witnesses testified to their belief in defendant's religious sincerity. A jail matron testified that defendant had adapted well to incarceration. Defendant's mother testified about her own schizophrenia and how defendant had helped with the family while the mother was hospitalized. Defendant's father testified that defendant was a good daughter and had never been any trouble to the family. He testified that he suspected that Gibbs had abused defendant. Defendant's brother testified that defendant had contributed to the family but that she had cut off contact after she moved out. Dr. Rollins reiterated his previous testimony and opined that defendant was susceptible to treatment and rehabilitation.
Defendant first contends that her constitutional right to be present at all stages of her capital trial was violated because the trial Judge engaged in ex parte communication with prospective jurors during jury selection. We find no prejudicial error.
We have recognized that the protection of Article I, Section 23 of the North Carolina Constitution "guarantees an accused the right to be present in person at every stage of his trial." State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987) (Payne I) (citing State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969)), appeal after remand, 328 N.C. 377, 402 S.E.2d 582 (1991). We have previously found prejudicial error where a trial Judge admonished a jury outside the presence of the defendant. Payne I, 320 N.C. at 140, 357 S.E.2d at 613.
In this case the jury selection lasted several days. The procedure used by the trial court involved general questioning of the entire venire by the court, general questioning of a panel of twelve by the State, and then individual death qualification of those twelve by the State. During the individual questioning, the venirepersons who had been seated in the jury box, but who were not being questioned, waited in the jury deliberation room; venirepersons
who had not yet been called to the box waited together in various available rooms in the courthouse, including the grand jury room on the day in question. On the fifth full day of jury selection, the alleged ex parte exchange about which defendant now complains occurred.
The record reveals that after the individual questioning of a prospective juror, the trial Judge indicated that he thought a recess would be appropriate. The following exchange occurred.
THE COURT: IF YOU WILL, BRING IN THE MEMBERS OF THE JURY JUDGES IN THE JURYROOM, MR. SADLER. WITH THE CONSENT OF ALL COUNSEL, I'M SIMPLY GOING TO INFORM THE MEMBERS OF THE JURY IN THE GRAND JURYROOM THAT THEY ARE AT BREAK UNDER THE COURT'S PRIOR INSTRUCTION UNTIL TWENTY-FIVE AFTER. IS THAT SATISFACTORY?
MR. HARRELL [DEFENSE COUNSEL]: YES, SIR, YOUR HONOR.
THE COURT: AGAIN, THANK YOU, MR. EVANS [THE INDIVIDUAL PROSPECTIVE JUROR]. IF YOU WILL, BRING IN THE OTHER MEMBERS OF THIS judges.
(THE BAILIFF DID AS REQUESTED.)
(ALL PROSPECTIVE MEMBERS OF THE JURY JUDGES WERE PRESENT.)
THE COURT: LADIES AND GENTLEMEN, WE'RE GOING TO TAKE THE MORNING RECESS AT THIS TIME AND GIVE YOU AN OPPORTUNITY TO STRETCH YOUR LEGS AND GET SOME REFRESHMENT IF YOU WOULD LIKE TO DO SO. PLEASE REASSEMBLE IN THE SEATS YOU NOW OCCUPY AT TWENTY-FIVE AFTER AND WE WILL CONTINUE WITH THE MATTER NOW BEFORE US. AND PLEASE RECALL AND ABIDE BY ALL OF MY EARLIER INSTRUCTIONS. EVERYONE ELSE PLEASE REMAIN SEATED. THE MEMBERS OF THE JURY ARE EXCUSED AT THIS TIME UNTIL TWENTY-FIVE AFTER. THANK YOU.
(THE EIGHT PROSPECTIVE JURORS OF THE JURY JUDGES RETIRED FROM THE COURT ROOM AT 11:11.)
THE COURT: WE ARE AT EASE UNTIL TWENTY-FIVE AFTER, FOLKS.
Defendant contends that the transcript reveals the trial Judge's intention to go into the grand jury room (outside the presence of the defendant) to deliver instructions to the prospective jurors waiting there. Defendant argues that this scenario is identical to
that which occurred in Payne I and thus is governed by that case. The State contends that the transcript reveals that no ex parte contact in fact occurred and thus there was no error.
On 11 January 1993, two days before the oral argument of this case on appeal, the State filed a motion to amend the record on appeal in this Court. The motion included affidavits from the trial Judge and the lead prosecutor in this case which, if considered, would tend to show that the presiding Judge did not communicate with any juror or prospective juror ex parte at any time. In opposing the motion, defendant points out that this Court has consistently denied attempts by parties to amend a settled record with affidavits, citing State v. McCarver, 329 N.C. 259, 260, 404 S.E.2d 821, 822 (1991) (where this Court refused to allow amendment to the record to include an affidavit made three years after the event). In a supplemental response, defendant raises questions about the accuracy of the affidavits.
The State's motion to amend the record is denied. As we have consistently done in the past, we again refuse to consider affidavits which are not part of the record made at trial. See State v. Boyd, 332 N.C. 101, 107, 418 S.E.2d 471, 474 (1992); McCarver, 329 N.C. at 260, 404 S.E.2d at 822.
We agree with defendant that the transcript lends support to her contention that the trial Judge did in fact go to the grand jury room to instruct the prospective jurors that they were at break. However, we disagree with defendant's contention that Payne I requires us to find prejudicial error based on this contact.
In Payne I the record showed that at the Conclusion of jury selection the trial court instructed the court reporter to "show that I am giving the jury a break and that I am going to administer my admonitions to them in the jury room." Payne I, 320 N.C. at 139, 357 S.E.2d at 613. We then observed that "as there is no indication of record to the contrary, we must assume that the trial court caused the record to speak the complete truth in this regard, and that the trial court actually took the steps indicated." Id. However, as there was nothing in the record to indicate what admonitions the trial court delivered to the jury outside the presence of the defendant, the State could not meet its burden of proving harmlessness beyond a reasonable doubt. Id. at 140, 357 S.E.2d at 613.
In this case, unlike in Payne I, the record affirmatively reveals exactly what the trial court intended to say to the prospective jurors. The trial Judge did not merely indicate his intention "to administer admonitions" but instead informed the parties that he was going to inform the prospective jurors that they were at break under his prior instructions. There is no indication that anything to the contrary occurred. Again we must assume that the trial court caused the record to speak the complete truth. While it was error for the trial court to address the prospective jurors outside the presence of the defendant, the State has met its burden of proving that the error was harmless beyond a reasonable doubt. See State v. Willis, 332 N.C. 151, 173-74, 420 S.E.2d 158, 168 (1992); State v. Huff, 325 N.C. 1, 35, 381 S.E.2d 635, 654 (1989), sentence vacated, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990), on remand, 328 N.C. 532, 402 S.E.2d 577 (1991).
The defendant also argues that the trial court improperly directed the bailiff to communicate on three occasions with venirepersons waiting to be called and on five occasions with the jury itself. On four of the eight occasions, the trial court instructed the bailiff to inform the jury to take or extend a recess during evidentiary hearings or Discussions of legal issues. On the other four occasions, the trial court instructed the bailiff to inform the jurors they were on break and they were to continue to abide by his earlier instructions. The transcript reveals that defense counsel approved of this shorthand procedure and declined the trial court's offer to be heard on the matter.
We observe initially that it would be unreasonable to hold that bailiffs may have no contact with the jury. In carrying out their custodial duties bailiffs must necessarily engage in some contact with the jury or prospective jurors. While a bailiff certainly may not attempt to instruct jurors as to the law, a simple reminder by the bailiff to the jurors that they are to abide by the court's earlier instructions should not be considered an instruction as to the law. Communications such as these do not relate to defendant's guilt or innocence. The subject matter of these communications "in no way implicates defendant's confrontation rights, nor would defendant's presence have been useful to his defense." State v. Buchanan, 330 N.C. 202, 223-24, 410 S.E.2d 832, 844-45 (1991). ...