The opinion of the court was delivered by: Mitchell, Chief Justice
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Allen (J.B., Jr.), J., on 5 June 1996 in Superior Court, Caswell County, upon a jury verdict finding defendant guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to additional judgments for first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, and first-degree rape was allowed by the Supreme Court on 2 June 1997. Heard in the Supreme Court 18 November 1997.
On 12 September 1995, defendant was indicted for first-degree murder, first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, first-degree kidnapping, and first-degree rape. On 18 September 1995, defendant filed a motion for change of venue or, in the alternative, a special venire, which was denied by judge W. Osmond Smith, III, after hearing at the 6 November 1995 Criminal Session of Superior Court, Caswell County. On 1 May 1996, defendant filed an amended motion for change of venue or, in the alternative, a special venire, which was denied after hearing by Judge J.B. Allen, Jr., at the 6 May 1996 Criminal Session of Superior Court, Caswell County.
Defendant was tried capitally at the 13 May 1996 Criminal Session of Superior Court, Caswell County. The jury found defendant guilty of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. The jury also found defendant guilty of first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, first-degree kidnapping, and first-degree rape. After a separate capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction. On 5 June 1996, the trial court sentenced defendant to death. Defendant appealed his conviction for first-degree murder and death sentence to this Court as of right. His motion to bypass the Court of Appeals as to his appeal of the remaining convictions, except the kidnapping, was allowed by this Court 2 June 1997.
The State's evidence tended to show inter alia that Robert Jackson left his Caswell County mobile home at 1:50 a.m. on 7 July 1995 to gather and ready a herd of cows for milking. Jackson left his two children, Bobby, thirteen years old, and Amy, eleven years old, asleep in their beds.
Sometime between 1:50 a.m. and 4:50 a.m., defendant entered the mobile home, stabbed Bobby repeatedly with a knife, and began his assault on Amy. Bobby struggled to a telephone in the kitchen and dialed 911. When emergency personnel arrived at 5:00 a.m., Bobby was found on the kitchen floor in a pool of his own blood. Defendant had stabbed the boy some twenty-three times. Bobby identified defendant as the man who stabbed him and whom he had seen carry his sister out of the mobile home. It was not until some twelve hours later that Amy's body was found in a field, with her pajama bottoms around her feet and her pajama top partially torn off. Amy had died from a stab to her throat that had severed her carotid artery. An autopsy revealed that Amy had also been sexually assaulted. Defendant worked with Jackson on the dairy farm, and both children knew him well. Defendant was arrested by sheriff's deputies on the dairy farm the same morning the children were attacked.
By his first assignment of error, defendant contends that the trial court erred in denying his pretrial motion to conduct a voir dire regarding the jury's perceptions about parole eligibility. This Court has consistently decided this issue contrary to defendant's contention. State v. Chandler, 342 N.C. 742, 467 S.E.2d 636, cert. denied, __ U.S. __, 136 L.Ed.2d 133 (1996); State v. Powell, 340 N.C. 674, 459 S.E.2d 219 (1995), cert. denied, ___ U.S. ___, 133 L. Ed. 2d 688 (1996); State v. Price, 337 N.C. 756, 448 S.E.2d 827 (1994), cert. denied, 514 U.S. 1021, 131 L. Ed. 2d 224 (1995); State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 514 U.S. 1038, 131 L. Ed. 2d 292 (1995). As we explained in Payne, the United States Supreme Court's decision in Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133 (1994), does not affect our position on this issue when, as here, defendant would be eligible for parole if given a life sentence. Payne, 337 N.C. at 516-17, 448 S.E.2d at 99-100. We continue to adhere to our prior rulings on this issue. This assignment of error is overruled.
By another assignment of error, defendant contends that the trial court erred in denying his pretrial motions for change of venue or special venire and his renewals of those motions during jury selection. The trial court conducted pretrial hearings and denied the motions. The trial court indicated, however, that it would allow defendant to renew his motion and would reconsider the matter if it became apparent at any time that a fair and impartial jury could not be selected.
A defendant seeking a new trial on the basis of a trial court's denial of a motion for change of venue or special venire must ordinarily establish specific and identifiable prejudice against him as a result of pretrial publicity. As we have stated in numerous cases, for a defendant to meet his burden of showing that pretrial publicity prevented him from receiving a fair trial, he ordinarily must show inter alia that jurors with prior knowledge decided the case, that he exhausted his peremptory challenges, and that a juror objectionable to him sat on the jury. State v. Barnes, 345 N.C. 184, 204, 481 S.E.2d 44, 54, cert. denied, ___ U.S. __, __ L.Ed.2d __, 66 U.S.L.W. 3260 (1997), cert. denied, __ U.S. __, __ L.Ed.2d __, 1998 WL 125185 (March 23, 1998) (No. 97-5089); State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d 339, 347-48 (1983).
In this case, defendant did not exhaust his peremptory challenges before the twelve jurors who decided his case were seated; he used only ten of his fourteen peremptory challenges. As the jurors at issue in this case each stated unequivocally that they would be able to reach a verdict based solely upon the evidence presented at trial, defendant did not exhaust his peremptory challenges, and defendant has not offered particular objections to any individual juror, defendant has not shown any specific identifiable prejudice that necessitated a change of venue or special venire. Barnes, 345 N.C. at 205, 481 S.E.2d at 54.
Our examination of this issue in the present case, however, must go further. We indicated in State v. Jerrett that where the totality of the circumstances reveals that an entire county's population is "infected" with prejudice against a defendant, the defendant has fulfilled his burden of showing that he could not receive a fair trial in that county even though he has not shown specific identifiable prejudice. Jerrett, 309 N.C. at 258, 307 S.E.2d at 349. We based this conclusion on the United States Supreme Court's decision in Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600 (1966). Sheppard involved "a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival." Murphy v. Florida, 421 U.S. 794, 799, 44 L. Ed. 2d 589, 594 (1975). The Supreme Court stated in Sheppard that, while a defendant must ordinarily show specific prejudice, "`at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.'" Sheppard, 384 U.S. at 352, 16 L. Ed. 2d at 614 (quoting Estes v. Texas, 381 U.S. 532, 542-43, 14 L. Ed. 2d 543, 550 (1965)).
In Jerrett, this Court noted that "the crime occurred in a small, rural and closely-knit county where the entire county was, in effect, a neighborhood." Jerrett, 309 N.C. at 256, 307 S.E.2d at 348. Alleghany County, where Jerrett was tried, had a population at that time of 9,587 people. Id. at 252 n.1, 307 S.E.2d at 346 n.1 (citing U.S. Census Report). The voir dire in Jerrett revealed that one-third of the prospective jurors knew the victim or some member of the victim's family, many jurors knew potential State's witnesses, four jurors who decided the case knew the victim's immediate family or other relatives, six jurors who decided the case knew State's witnesses, and the foreman stated that he had heard a victim's relative discussing the case in an emotional manner. Id. at 257, 307 S.E.2d at 348-49. The jury in Jerrett was examined collectively on voir dire rather than individually, thereby allowing prospective jurors to hear that other prospective jurors knew the victim and the victim's family, that some had already formed opinions in the case, and that some would be unable to give the defendant a fair trial. Id. at 257-58, 307 S.E.2d at 349. Additionally, in Jerrett, a deputy sheriff of the county, a magistrate of the county, and a private prosecutor retained by the victim's family and appearing as counsel for the State with the district attorney all expressed the opinion that it would be difficult if not impossible to select a jury in Alleghany County comprised of jurors who had not heard about, discussed, and formed opinions about the case. Id. at 252-54, 307 S.E.2d at 346-47. A majority of this Court concluded that based on the totality of the circumstances, there was a reasonable likelihood that Jerrett would not be able to receive a fair trial before a local jury. Id. at 258, 307 S.E.2d at 349.
Several factors distinguish the case sub judice from both Sheppard and Jerrett. With a population exceeding 20,000, North Carolina Manual 1995-1996, at 959 (Lisa A. Marcus ed.), Caswell County does not constitute a single small "neighborhood" like that at issue in Jerrett. Further, the population of the community from which the jury is to be drawn is not determinative and should not be the central focus when determining whether a change of venue is necessary. See Barnes, 345 N.C. at 206, 481 S.E.2d at 55 (focusing on matters such as the exposure of prospective jurors to publicity and its potential prejudice in determining whether prejudicial publicity had "pervaded the proceedings").
While a number of prospective jurors had heard about the crimes involved in the present case prior to trial, only one of the seated jurors had any preconceived notions about the guilt or innocence of defendant Billings. That juror stated that she could put aside anything she had heard outside the courtroom and could find defendant not guilty should the State fail to prove him guilty beyond a reasonable doubt. Defendant did not challenge this juror.
Furthermore, the level of personal familiarity that the Jerrett jurors had with the victim, the victim's family, and the State's witnesses is not present in this case. The United States Supreme Court concluded that the prejudicial influence of the news media in cases like Sheppard, 384 U.S. 333, 16 L. Ed. 2d 600; Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543; and Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663 (1963), "pervaded the proceedings" to the prejudice of the defendant in the community at large and in the courtroom, and resulted in a "circus atmosphere" in the courtroom itself during trial. Murphy, 421 U.S. at 799, 44 L. Ed. 2d at 594 (discussing Estes). The record in this case, on the other hand, does not show that the legal proceedings or news accounts at issue here were anything but routine. Rather, the trial court conducted all of the proceedings here in an able and commendable fashion, with the solemnity and gravity befitting a proceeding in which defendant's fate would be determined. Further, there is no indication here that news accounts of the crimes or the trial were other than routine factual accounts.
The United States Supreme Court warned in Murphy that its prior decisions "cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process." Id. We have consistently held that factual news accounts with respect to the commission of a crime and the pretrial proceedings relating to that crime do not of themselves warrant a change of venue. See, e.g., State v. Soyars, 332 N.C. 47, 53, 418 S.E.2d 480, 484 (1992). Before a change of venue or special venire will be required, pretrial publicity must create "in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial." N.C.G.S. § 15A-957(1) (1997).
The United States Supreme Court determined in Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, that no matter what could be shown during the selection of the jury, the community in which the defendant was tried must be deemed to be so prejudiced as a result of pretrial publicity that the defendant could not receive a fair trial. That case is unique, however, because at a pretrial hearing on his motion for change of venue, which the trial court denied, evidence revealed that his lengthy televised confession without benefit of counsel was participated in by law enforcement authorities and was broadcast repeatedly to the local viewing audience in the community from which the jury was drawn. The Rideau case is "an aberration which should be confined to its facts and not brought into play here." State v. McDougald, 38 N.C. App. 244, 249, 248 S.E.2d 72, 78 (1978) appeal dismissed and disc. rev. denied, 296 N.C. 413, 251 S.E.2d 472 (1979).
While at least ten of the seated jurors in this case had been exposed to some information about the crimes before trial, there is no indication that these factual accounts were prejudicial to defendant. Certainly, nothing in the record in the present case would permit this Court to conclude that either the community from which the jury was drawn or the trial proceedings were so infected by prejudice that they must be deemed to have deprived defendant of the opportunity to receive a fair trial and, thereby, to have denied him due process. We therefore conclude that, viewing the totality of the circumstances in this case, there is not a reasonable likelihood that pretrial publicity prevented defendant from receiving a fair trial in Caswell County, and the trial court did not err in refusing to grant defendant's motions for change of venue or a special venire.
By another assignment of error, defendant contends that the trial court erred by excusing for cause a venire member who was qualified and fit to serve. Prospective juror Epling initially indicated he felt that he would be a fair juror. Upon questioning by the prosecutor, Epling stated he thought that he could find a defendant guilty knowing that there would then be a capital sentencing proceeding but that he "would have to give [it] some thought." He said he was "kind of split" on the death penalty. He stated that he could understand the application of the death penalty in some circumstances but that he did not know that he could be the one to make the decision. He stated that his feelings toward the death penalty could "probably" substantially impair his ability to consider voting for the death penalty. Epling also stated that his longstanding moral convictions about the death penalty would substantially impair him in the sentencing process and prevent him from voting for the death penalty.
The standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the prospective "juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)); accord State v. Davis, 325 N.C. 607, 621-22, 386 S.E.2d 418, 425 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). "[B]ecause a prospective juror's bias for or against the death penalty cannot always be proven with unmistakable clarity," this Court must give great deference to the trial court's judgment concerning whether a prospective juror would be able to follow the law. State v. Miller, 339 N.C. 663, 679, 455 S.E.2d 137, 145, cert. denied, ___ U.S. ___, 133 L. Ed. 2d 169 (1995). Here, the record on appeal will support only one Conclusion; the prospective juror's views would have prevented his proper performance of the duties of a juror. The trial court did not err in excusing him for cause, and this assignment of error is overruled.
By another assignment of error, defendant contends that the trial court erred in denying him the opportunity to question prospective jurors regarding their ability to fairly and impartially consider statutory mitigating circumstances. Specifically, defendant contends that the trial court improperly limited his voir dire of prospective juror Massey.
Counsel for defendant asked prospective juror Massey whether the statutory mitigating circumstance concerning defendant's impairment by cocaine use, N.C.G.S. § 15A-2000(f)(6) (1997), would in his opinion be mitigating. Upon Massey's answer that his feeling would be so strong that it would almost be impossible for him to consider this circumstance to be mitigating, defendant challenged Massey for cause. The trial court then instructed Massey on the law concerning aggravating and mitigating circumstances, and Massey ...