Appeal of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing three sentences of death entered by Johnson (E. Lynn), J., on 1 June 1995 in Superior Court, Cumberland County, upon jury verdicts finding defendant guilty of three counts of first-degree murder. Defendant's motion to bypass the Court of Appeals as to an additional judgment was allowed 3 July 1996. Heard in the Supreme Court 10 December 1996.
The opinion of the court was delivered by: Whichard, Justice.
On 6 July 1992 defendant was indicted for three counts of first- degree murder and one count of first-degree rape, all occurring during the early morning hours of 2 November 1991. Defendant was tried capitally, and the jury returned verdicts finding him guilty of the first-degree rape and the first-degree murder of Helisa Hayes, the latter based on malice, premeditation, and deliberation and under the felony murder rule; the first-degree murder of Phillip Hayes based on malice, premeditation, and deliberation; and the first-degree murder of Darien Hayes based on malice, premeditation, and deliberation. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death for each of the three murders. The trial court sentenced defendant accordingly and additionally sentenced him to a consecutive term of life imprisonment for the first-degree rape. For the reasons set forth herein, we conclude that defendant received a fair trial, free from prejudicial error, and that the sentence of death is not disproportionate.
The evidence tended to show that in the early morning hours of 2 November 1991, defendant went to the home of victim Helisa Hayes, where she resided with her two children, Phillip and Darien. Defendant was a close friend of Helisa's ex-husband. While at the home, defendant had "forceful" sex with Helisa, beat her, and strangled her to death. Defendant then took her son Phillip into the bathroom, where defendant strangled him with the electrical cord of a curling iron and stabbed him numerous times in his head and body with a pair of scissors. After killing Phillip, defendant went into Darien's bedroom, sat her up on her bed, and strangled her to death with a curling-iron cord.
In his first assignment of error, defendant contends that the trial court erred by refusing to allow him to ask prospective jurors whether, after being informed that defendant had been previously convicted of first-degree murder, they would still be able to consider mitigating circumstances and impose a life sentence. He contends that the trial court's ruling violated his state and federal constitutional rights as enunciated in Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492 (1992). We disagree.
The question defense counsel proposed to ask prospective jurors, and the trial court's response, were as follows:
MR. BRITT: I want to ask them if . . . knowing that he had a previous first[-]degree murder conviction, they could still consider mitigating circumstances . . . in determining what their ultimate recommendation as to life or death is going to be.
THE COURT: I'm afraid, Mr. Britt, no matter how you want to couch the question, it is always going to come back to being a stakeout question. I will permit you to ask broad questions about whether they can consider any and all aggravating circumstances and balance that against any and all mitigating circumstances, whatever they might be.
This Court was presented with an almost identical scenario in State v. Robinson, 339 N.C. 263, 451 S.E.2d 196 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). In that case, as in the case at bar, the defendant had a prior conviction for first-degree murder, and his counsel wished to ask the prospective jurors: f you were to . . . find during the sentencing hearing that the defendant had a previous first[-]degree murder conviction prior to the murders for which he is being sentenced this week, could you still follow the Court's instructions and weigh the aggravating and mitigating circumstances and consider life imprisonment as a sentencing option.
Id. at 272, 451 S.E.2d at 202. This Court held this question "to be an improper attempt to 'stake out' the jurors as to their answers to legal questions before they are informed of legal principles applicable to their sentencing recommendation." Id. at 273, 451 S.E.2d at 202.
There is no meaningful distinction between the question proposed in Robinson and the one proposed here. Both seek to discover in advance what a prospective juror's decision will be under a certain state of the evidence. This Court has held that it is not permissible to ask a prospective juror how a certain set of facts would affect his or her decision. State v. Kandies, 342 N.C. 419, 441, 467 S.E.2d 67, 79, cert. denied, --- U.S. ---, 136 L. Ed. 2d 167 (1996); State v. Vinson, 287 N.C. 326, 336, 215 S.E.2d 60, 68 (1975), death sentence vacated, 428 U.S. 902, 49 L. Ed. 2d 1206 (1976). This is because such questions are confusing to the average juror who at that stage of the trial has heard no evidence and has not been instructed on the applicable law. . . . [and because] such questions tend to "stake out" the juror and cause him to pledge himself to a future course of action.
Vinson, 287 N.C. at 336, 215 S.E.2d at 68. Questions that seek to indoctrinate prospective jurors regarding potential issues before the evidence has been presented and jurors have been instructed on the law are impermissible. State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989).
Further, a stake-out question is not made permissible simply because it is predicated on a set of facts that is cast as uncontroverted rather than hypothetical. In State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), cert. denied, --- U.S. ---, 138 L. Ed. 2d 1022 (1997), the defendant was tried capitally for a first-degree murder that was committed by his cohort. During jury selection the State asked a prospective juror if he could follow the law by considering the punishment of death for an accessory who "did not actually 'pull the trigger.'" Id. at 14, 478 S.E.2d at 169. Defendant argued that this constituted an impermissible stake-out question. Id. at 16, 478 S.E.2d at 170. This Court disagreed, noting that the predicate for the State's inquiry was not a hypothetical set of facts but the uncontroverted fact that the defendant was neither "charged nor going to be tried as a principal." Id. at 17, 478 S.E.2d at 170. This observation should not be construed to allow any or all voir dire questions premised on uncontroverted facts, regardless of their tendency to stake out or indoctrinate jurors. Rather, it indicates only this Court's Conclusion that the trial court did not abuse its discretion by allowing the State to inquire into the prospective jurors' ability to follow the law regarding the death penalty for accessories in a manner that neither indoctrinated the venire regarding unproven facts nor committed prospective jurors to a decision prior to their being instructed on the law.
With regard to defendant's contention that the trial court here violated Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, by refusing to allow the proposed questioning, this Court has held that Morgan does not require that a defendant be allowed to ask stake-out questions. See Kandies, 342 N.C. at 440-41, 467 S.E.2d at 78-79 (holding that "Would the age of the victim in this case . . . make a difference to you as to whether you would impose a life sentence or a death sentence?" is a stake-out question which Morgan does not require that a defendant be allowed to ask); State v. Lynch, 340 N.C. 435, 451- 52, 459 S.E.2d 679, 685-86 (1995) (holding that "How about in a case where a child is killed? Would you automatically tend to feel that the death penalty should be imposed?" comprise a stake-out question which Morgan does not require that a defendant be allowed to ask), cert. denied, --- U.S. ---, 134 L. Ed. 2d 558 (1996). The trial court in this case properly refused to allow questioning about defendant's prior first-degree murder conviction, while allowing defendant to ask prospective jurors whether they would be able to consider all aggravating and mitigating circumstances. This ruling did not violate Morgan. This assignment of error is overruled.
In his next assignment of error, defendant contends that the trial court improperly excused for cause prospective jurors Oakman and Futch based on the Conclusion that they would not be able to give fair consideration to both potential sentences because of personal feelings concerning the death penalty. Defendant argues that the trial court erred under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841 (1985), contending that the voir dire of these jurors did not reveal that their views on the death penalty would prevent or substantially impair the performance of their duties as jurors as those cases require for a for- cause excusal.
The granting of a challenge for cause based on a prospective juror's unfitness is a matter within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Abraham, 338 N.C. 315, 343, 451 S.E.2d 131, 145 (1994). " prospective juror's bias may not always be 'provable with unmistakable clarity [and,] n such cases, reviewing courts must defer to the trial court's judgment concerning whether the prospective juror would be able to follow the law impartially.'" State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 908 (1993) (quoting State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990)) (second and third alterations in original).
During Oakman's voir dire, she was equivocal at times about her ability to impose the death penalty. However, on several occasions she clearly stated her inability to fairly consider the death penalty as a punishment. At one point the State asked her whether, if the trial proceeded to the sentencing stage, she "could consider, under appropriate circumstances, voting for the death penalty as a punishment." She responded, "To be honest, I think I'd have problems with it." When asked to clarify her feelings, she stated, "I just don't -- I feel like, you know, you're taking a life. I mean, because they took a life is not -- that's not a proper answer, to take his life. That's not going to bring them back." The State continued to probe by asking, "o you think that, if called upon to make that decision, that, because of your feelings, you would vote for life imprisonment?" Oakman answered "yes." The court asked Oakman whether she could fairly consider both the death penalty and life imprisonment. She responded that she could not. The trial court was within its discretion in excusing this prospective juror for cause.
Similarly, prospective juror Futch, though equivocal at times, made several statements which indicated his inability to follow the law. Futch worked for a newspaper and said he knew DNA had linked defendant to the victim and that defendant had been involved in another murder. In response to questioning by the State concerning his feelings about the death penalty, Futch stated that he was "ust opposed to the idea of it." When asked how his personal feelings might impact his sentencing decision if defendant was found guilty, he stated, "I probably would go with [life imprisonment]." The trial court did not abuse its discretion by excusing this prospective juror for cause. This assignment of error is overruled.
Defendant next argues that the trial court, in violation of Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, erred by failing to allow his for-cause challenge of prospective juror Richardson. Defendant contends that Richardson's responses during death qualification indicated that she would vote to sentence to death anyone convicted of first-degree murder. In response to questioning by defense counsel, Richardson indicated that she would be inclined to vote for the death penalty in the case of a murder that was "intentional, premeditated, and without any legal justification or excuse." After questioning by the State and defendant, the trial court stated its suspicion that the prospective juror may have been confused by questions asked "in a vacuum." After explaining the process of weighing mitigating and aggravating circumstances in a sentencing proceeding, the trial court asked Richardson whether she believed she could fairly consider both sentencing alternatives. Richardson stated three times that she could. The trial court thus did not abuse its discretion when it denied defendant's for-cause challenge. This assignment of error is overruled.
Defendant next assigns error to the introduction of evidence that he attended and participated in the victims' funeral. The State elicited testimony that defendant had attended the funeral of the three victims and had served as a pallbearer for one of the child victims. This testimony revealed defendant's statement that carrying the body of a victim he had killed "never gave a bad feeling." Defendant argues this evidence was irrelevant and unduly prejudicial and thus inadmissible under N.C.G.S. § 8C-1, Rules 401 and 403.
Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.G.S. § 8C-1, Rule 401 (1992). This Court has held that evidence is relevant if it "tend to shed light upon the circumstances surrounding the killing." State v. Stager, 329 N.C. 278, 322, 406 S.E.2d 876, 901 (1991). Here, evidence of defendant's participation and demeanor at the funeral tended to shed light on the circumstances of the murders and defendant's intent at the time of the offenses. See id. at 321-22, 406 S.E.2d at 900-01 (holding no error in admission of evidence that the defendant was calm and not crying shortly after the victim's death and that she disposed of his personal effects the day after his funeral); State v. Gallagher, 313 N.C. 132, 138, 326 S.E.2d 873, 878 (1985) (holding no error in admission of evidence that the defendant did not appear to be grieving at husband's funeral). Therefore, this evidence was relevant under Rule 401.
Rule 403 provides that "evidence may be excluded 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." N.C.G.S. § 8C-1, Rule 403 (1992). "Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, and its ruling may be reversed for abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996). The evidence complained of was probative of the circumstances surrounding the offenses and of defendant's intent. The trial court was within its discretion in ruling that its probative value was not substantially outweighed by unfair prejudice. Accordingly, this assignment of error is overruled.
In his next assignment of error, defendant contends that the evidence was insufficient to support a finding of first-degree rape, thus undermining his conviction for the first-degree murder of the adult victim which was based, in the alternative, on the felony murder rule. He contends specifically that there was insufficient evidence that he inflicted serious personal injury on the adult victim as required by N.C.G.S. § 14-27.2(a)(2)(b).
In determining whether serious personal injury has been inflicted for purposes of satisfying the elements of first-degree rape, "the court must consider the particular facts of each case." State v. Herring, 322 N.C. 733, 739, 370 S.E.2d 363, 367 (1988). The element of infliction of serious personal injury is satisfied when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, injury inflicted upon the victim or another in an attempt to commit the crimes or in furtherance of the crimes of rape or sexual offense, or injury inflicted upon the victim or another for the purpose of concealing the crimes or to aid in the assailant's escape.
Defendant argues that this Court's decisions in State v. Thomas, 332 N.C. 544, 423 S.E.2d 75 (1992), and State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982), establish that in cases of first-degree rape, serious personal injury does not include injury that results in death. Defendant further contends that the evidence of injury aside from that leading to death in this case is insufficient to satisfy the serious personal injury requirement.
The rule that serious personal injury cannot include injury causing death appears to have its genesis in State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962), a case involving the charge of assault with a deadly weapon with intent to kill. The charge in Jones was brought under a statute then codified as N.C.G.S. § 14-32. Id. at 90, 128 S.E.2d at 2. This statute included as an element that the assault "inflicts serious injury not resulting in death." Id. This Court gave this element its plain meaning. Id. at 91, 128 S.E.2d at 3. It was logical for the General Assembly to limit the injuries capable of supporting assault charges to those that do not cause death because injury causing death would have elevated the assault to murder. For the crime to be punishable as an assault, it was necessary that the injury fall short of death.
In Boone, 307 N.C. 198, 297 S.E.2d 585, this Court addressed the question of whether a mental injury was sufficient to satisfy the serious personal injury requirement in a case of attempted first-degree rape. The Court cited Jones, the assault case, for its definition of serious bodily injury, including language which stated that "he injury must be serious but it must fall short of causing death." Id. at 203, 297 S.E.2d at 588-89. In Thomas, a case involving a first-degree sexual offense conviction, this Court cited Boone for the proposition that serious personal injury cannot include injury resulting in death. Thomas, 332 N.C. at 555, 423 S.E.2d at 81. Thomas thus completed the migration of this restricted definition of serious injury from the assault context to the sexual offense and rape context.
This restricted definition was not essential to the holding of either Boone or Thomas. Further, unlike the assault statute at issue in Jones, the statutes governing first-degree rape and first-degree sexual offense do not limit the injuries underlying the charge to those not resulting in death. N.C.G.S. §§ 14-27.2, 14-27.4 (Supp. 1997). While defining serious injury to exclude fatal injuries is appropriate in the context of assault charges, the underlying logic does not extend to cases of first-degree rape and sexual offense. Serious injuries that prove fatal transform an assault into a murder, but they do not similarly change a first-degree rape into a different crime. Rather, it is proper based on such facts to charge a defendant with both first- degree rape and murder. Fatal injuries are obviously serious, and it would be absurd to allow a defendant to escape a first-degree rape conviction because his victim did not survive the injuries he inflicted in the course of the sexual assault. Any language in Thomas and Boone suggesting that the serious personal injury element of first-degree rape or sexual offense cannot be injury causing death is therefore disavowed.
Here, there was sufficient evidence to support the element of serious personal injury. In the opinion of Dr. John D. Butts, the medical examiner who performed the autopsy, the adult victim died as the result of strangulation. She had numerous blunt-force injuries; tears, scrapes, and bruises; abrading of the skin in the entrance to her vagina; and blood over a portion of her brain beneath a bruise on her scalp. Defendant's first-degree rape conviction properly supports his conviction for the first-degree murder of the adult victim under the felony murder theory. This assignment of error is overruled.
Next, defendant assigns error to the trial court's refusal to submit second-degree murder to the jury in connection with the murders of the two children. Murder in the first degree, the crime of which defendant was convicted with regard to all three victims, is the "intentional and unlawful killing of a human being with malice and with premeditation and deliberation." State v. Fisher, 318 N.C. 512, 517, 350 S.E.2d 334, 337 (1986). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Brown, 300 N.C. 731, 735, 268 S.E.2d 201, 204 (1980). A defendant is entitled to have a lesser-included offense submitted to the jury only when there is evidence to support it. Id. at 735-36, 268 S.E.2d at 204. "The sole factor determining the Judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense." State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).
Defendant argues that there was evidence that permitted a finding that he did not kill the child victims with premeditation and deliberation. Specifically, he argues that evidence was presented which indicated that he killed the children after an altercation with their mother and that he had consumed alcohol and cocaine that night. Defendant contends that this evidence was sufficient to convince a rational trier of fact that the murders of the two children did not involve premeditation and deliberation, thus entitling him to a jury instruction on second-degree murder. We disagree.
The evidence showed that after defendant killed the adult victim, he awakened one child, took him into the bathroom, wrapped a cord around his neck five times, and stabbed him at least twenty times in the head and body with a pair of scissors. Defendant then went into the other child's room, awakened her, sat her on the edge of the bed, and strangled her with the cord of a curling iron. This evidence shows that defendant acted with deliberation and does not show anger or emotion that overcame his reason so as to reduce the killing to second-degree murder. A rational trier of fact could not have convicted defendant of second-degree murder under this evidence. This assignment of error is overruled.
In his next assignment of error, defendant contends that the trial court erred by refusing to instruct the jury on voluntary intoxication. He argues that the evidence showed that he had consumed crack cocaine and large amounts of alcohol on the night of the murders and that his mental faculties were consequently impaired. He argues that, based on this evidence, he was incapable of forming the specific intent required for a first-degree murder conviction.
We have stated the law on voluntary intoxication as follows:
A defendant who wishes to raise an issue for the jury as to whether he was so intoxicated by the voluntary consumption of alcohol that he did not form a deliberate and premeditated intent to kill has the burden of producing evidence, or relying on evidence produced by the state, of his intoxication. Evidence of mere intoxication, however, is not enough to meet defendant's burden of production. He must produce substantial evidence which would support a Conclusion by the Judge that he was so intoxicated that he could not form a deliberate and premeditated intent to kill.
The evidence must show that at the time of the killing the defendant's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. In absence of some evidence of intoxication ...