Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Rousseau, J., on 23 July 1996 in Superior Court, Ashe County, upon a jury verdict finding defendant guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to his appeal of additional judgments was allowed by the Supreme Court on 2 September 1997. Heard in the Supreme Court 28 May 1998.
The opinion of the court was delivered by: Mitchell, Chief Justice.
On 9 October 1995, defendant was indicted for first-degree murder. On 18 March 1996, he was also indicted for robbery with a dangerous weapon, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was tried capitally at the 15 July 1996 Criminal Session of Superior Court, Ashe 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 robbery with a dangerous weapon, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. Following a separate capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction. On 23 July 1996, the trial court sentenced defendant to death. The trial court also sentenced defendant to a concurrent sentence of sixty-three to eighty-five months imprisonment for the kidnapping conviction and to consecutive sentences of fifty-five to seventy-five months imprisonment for the robbery conviction and twenty-five to thirty-nine months imprisonment for the assault conviction. Defendant appealed his conviction for first-degree murder and death sentence to this Court as of right. On 2 September 1997, this Court allowed defendant's motion to bypass the Court of Appeals as to his appeal of the remaining convictions.
On 15 May 1997, defendant filed a petition for writ of certiorari in this Court seeking review of the trial court's order denying his request to supplement the trial transcript with the instructions given to newly selected grand jurors by the trial court. This Court entered an order on 23 July 1997 denying defendant's petition. On 25 August 1997, defendant filed a motion for reconsideration of his first petition, as well as a second petition for writ of certiorari seeking review of the trial court's order settling the record on appeal. On 9 October 1997, this Court entered an order dismissing defendant's motion for reconsideration of his first petition for writ of certiorari, but allowing his second petition for the limited purpose of expanding the record on appeal to include the statements of Gabriel Gervacio, Alan Varden, and Virginia Call.
The State's evidence tended to show, inter alia, that around 9:30 p.m. on 24 August 1995, defendant offered the victim, Macedonio Hernandez Gervacio, *fn1 $25.00 to help him move some things. Macedonio left the trailer he shared with his nephew, Gabriel Gervacio, and went with defendant. Defendant took Macedonio to a nearby cornfield with the intention of robbing him. While there, defendant beat Macedonio to death with a shovel handle and a tire iron, tied his right foot up around his head, and tied his hands behind his back. Later that same evening, defendant lured Gabriel Gervacio using the same ruse to the same cornfield to kill him because Gabriel could place defendant with the victim. Defendant struck Gabriel in the head with a baseball bat, but was unable to subdue him. Gabriel escaped into the cornfield, where he hid all night. The next morning, Gabriel showed up at the house of Mrs. Clyde Reeves seeking assistance. Eventually, law enforcement officials were called in, and an investigation uncovered Macedonio's body.
In the weeks prior to 24 August, defendant discussed robbing Macedonio with his friend Alan Varden in an effort to recruit Varden's help. After killing Macedonio, defendant again made an attempt to obtain Varden's assistance, this time in murdering Gabriel. Although he refused to help defendant commit either crime, the baseball bat defendant used to assault Gabriel belonged to Varden. Following the assault of Gabriel, defendant returned home; told his wife, Virginia "Jennie" Call, and Varden what had happened; and packed some clothes. The three of them then went to Varden's trailer, where defendant shaved off his beard and mustache. Defendant told his wife and Varden that he was going to Monroe or Charlotte. He also returned the bat to Varden, who wiped it off. Subsequently, defendant checked into the Knight's Inn Motel in Monroe, under the name "Richard Finley," where he was later arrested.
PRETRIAL AND JURY-SELECTION PHASE
By an assignment of error, defendant contends that the trial court erred by allowing only one of his two attorneys to participate in voir dire. We find no error. The trial court may properly allow only one of a capital defendant's attorneys to question jurors during voir dire where the court does not preclude the attorneys from consulting or communicating with one another. State v. Fullwood, 343 N.C. 725, 472 S.E.2d 883 (1996), cert. denied, ___ U.S. ___, 137 L. Ed. 2d 339 (1997). In this case, the record reveals that defendant's attorneys were free to confer with one another, and the only limitation placed upon his second counsel was in the actual questioning of the prospective jurors. Furthermore, defendant does not argue, and the record fails to show, that the trial court's ruling compelled defendant to accept any juror to which he had valid objections.
By this same assignment of error, defendant argues that the trial court imposed unreasonable procedural requirements upon defense counsel throughout the trial. Defendant first complains about the jury-selection process. The trial court proposed that prospective jurors be called two at a time to the box during voir dire to speed up the selection process. Defendant agreed to this procedure, and this method was used to pick the jury that heard his case. After the twelfth juror was seated, there was one remaining juror in the box. Defendant contends that the trial court improperly required defense counsel to question and determine whether to challenge this remaining juror--the first prospective alternate juror--without putting a second juror in the box. This contention is without merit.
This Court has consistently held that the trial court has broad discretion to regulate jury voir dire. State v. Fletcher, 348 N.C. 292, 500 S.E.2d 668 (1998). In order to establish reversible error, defendant must show that the trial court abused its discretion and that defendant was prejudiced thereby. Id. In this case, defendant expressed satisfaction with the juror about whom he now complains, as this juror became the first alternate juror. Furthermore, this particular juror, as an alternate, did not deliberate either defendant's guilt or his sentence. Thus, defendant cannot show prejudice.
Defendant further contends that it was error for the trial court to impose a five-minute time limit on opening statements at the guilt-innocence phase and to forbid any opening statement whatsoever at defendant's separate capital sentencing proceeding. In addition, defendant complains that the trial court did not provide adequate time to review Gabriel's statement prior to cross-examination. These contentions are also without merit.
Control over opening statements rests within the sound discretion of the trial court. State v. Speller, 345 N.C. 600, 481 S.E.2d 284 (1997). Similarly, whenever a witness statement is delivered to a defendant as provided by the rules of discovery, the trial court may, upon request of the defendant, "recess proceedings in the trial for a period of time that it determines is reasonably required for the examination of the statement by the defendant and his preparation for its use in the trial." N.C.G.S. § 15A-903(f)(3) (1997). Here, defendant does not argue, and the record fails to show, any abuse of discretion in either ruling by the trial court. Finally, defendant fails to cite, and we do not find, any authority that he is entitled to an additional opening statement during the sentencing phase. For the foregoing reasons, this assignment of error is overruled.
By another assignment of error, defendant contends that the trial court erred by conducting numerous bench conferences and pretrial proceedings off the record and without his presence, sometimes to the exclusion of defense counsel. Specifically, defendant complains of bench conferences which were held outside his presence prior to the trial court's ruling upon, among other things, a pretrial Rule 24 motion, defendant's motion for appointment of additional counsel, the admissibility of Gabriel's interpreted testimony, and corrections and additions to the capital sentencing Issues and Recommendation form.
Even though the Confrontation Clause in Article I, Section 23 of the North Carolina Constitution guarantees a criminal defendant the right to be present in person at every stage of his capital trial, this right does not arise prior to the commencement of trial. State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996). A Rule 24 conference, which takes place prior to the selection and swearing-in of the jury panel, is not a stage of the trial. Id. We note that the record shows defendant was present in the courtroom for the entire Rule 24 conference. Moreover, the burden is on defendant to establish that his presence at the unrecorded bench conferences would have been useful, which he has failed to show. Speller, 345 N.C. 600, 481 S.E.2d 284.
Similarly, defendant can show no violation of his constitutional rights based upon the hearing on his motion to appoint second counsel. The record shows defendant was present for the entire hearing, which was recorded. Moreover, second counsel was ultimately appointed, even though defendant was already represented by retained counsel. Defendant has not demonstrated that the unrecorded bench conference, which took place after the hearing was concluded, implicated either his right to presence or his right to complete recordation.
We now turn to defendant's complaint of an unrecorded bench conference held during Gabriel's testimony. Defendant makes a bare assertion that the trial court erroneously admitted the improperly interpreted testimony of Gabriel pursuant to rulings made during this conference. However, defendant does not argue, and the record fails to show, that the interpreter was not qualified or that Gabriel's testimony was incorrectly translated. We note, furthermore, that the trial court reconstructed the bench conference for the record, sua sponte. The subject matter of the bench conference was not the translation of Gabriel's testimony, but the factual foundation for the evidence. Accordingly, we find no error.
Defendant next contends that the trial court improperly held an unrecorded bench conference regarding corrections and additions to the capital sentencing Issues and Recommendation form. During the sentencing charge conference, defendant offered all of his proposed mitigating circumstances in court and on the record. The trial court then held a conference in chambers regarding the circumstances. Defendant argues that the trial court erred by following this procedure. We agree.
"It is well settled that Article I, Section 23 of the Constitution of North Carolina guarantees a criminal defendant the right to be present at every stage of his trial." State v. Boyd, 343 N.C. 699, 718, 473 S.E.2d 327, 337 (1996), cert. denied, ___ U.S. ___, 136 L. Ed. 2d 722 (1997). This Court has recognized that the right to presence cannot be waived in capital cases and includes chambers conferences with counsel. Id. Accordingly, we have found error where the trial court conducted in-chambers conferences in defendant's absence even though counsel for both the State and defendant were present. State v. Exum, 343 N.C. 291, 470 S.E.2d 333 (1996). However, this kind of error may not always warrant a new trial. The State carries the burden of showing that the error was harmless beyond a reasonable doubt. Id. We conclude that the State has met this burden in the present case.
In this case, the entire in-chambers conference was reconstructed for the record, at defendant's request and in his presence, providing him ample opportunity to make any objections or comments to his attorneys. We have reviewed the record and conclude that although the trial court erred by conducting the conference in defendant's absence, this error was rendered harmless beyond a reasonable doubt by the trial court's action causing the record to show what had transpired at that conference.
Defendant also lists several transcript citations to numerous other bench conferences; however, he makes no argument in support of his contention that those conferences violated his right to presence. We have thoroughly reviewed the record and find no error. Defendant was present in the courtroom, and his counsel was at the bench for each conference. This Court has previously held that "a defendant's constitutional right `to be present at all stages of his capital trial is not violated when, with defendant present in the courtroom, the trial court conducts bench conferences, even though unrecorded, with counsel for both parties.'" Speller, 345 N.C. at 605, 481 S.E.2d at 286 (quoting State v. Buchanan, 330 N.C. 202, 223, 410 S.E.2d 832, 845 (1991)).
Defendant further argues under this assignment of error that the trial court erred by permitting several prospective jurors to be excused, deferred, or disqualified prior to the first day of jury selection without either defendant's participation or that of his counsel. He also complains that the trial court discussed the qualification process, heard and ruled on requests to be excused, and presided over the removal of nine individuals from defendant's trial venire for service on a grand jury. However, defendant's constitutional right to presence does not extend to the preliminary handling of prospective jurors before his own case has been called. State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996). Accordingly, we overrule this assignment of error.
By another assignment of error, defendant complains that the trial court improperly allowed prosecutors to withhold pretrial statements made to law enforcement officers by prosecution witnesses Alan Varden and Virginia Call. Defendant contends that the statements contain favorable evidence that the prosecution was obligated to turn over to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). We disagree.
In Brady, the United States Supreme Court held that the prosecution may not suppress favorable evidence which is material to the guilt or punishment of a defendant without violating due process. Id. Evidence is considered material only if there is a "reasonable probability" of a different result had the evidence been disclosed to the defense. Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d 490, 496 (1995). After thoroughly reviewing the statements in the amended record, we do not believe that either statement was material within the Supreme Court's meaning under Brady. At most, Virginia Call's statement suggested that defendant did not have the courage to murder Macedonio. However, both statements still tended to establish defendant's guilt. Even assuming, arguendo, that the statements were discoverable, the prosecution satisfied the requirements under Brady by providing the defense with the statements at trial in time for defendant to make effective use of them. Virginia Call was not called as a witness, and Alan Varden was cross-examined about his statement. Thus, defendant cannot show that he was prejudiced. This assignment of error is overruled.
By another assignment of error, defendant contends that the trial court erred by denying his motion to sequester prosecution witnesses, including Alan Varden. More specifically, defendant argues that the trial court's ruling was based upon an "entirely arbitrary" reason: that the courthouse could not accommodate sequestration of the witnesses. We do not agree.
A ruling on a motion to sequester witnesses rests within the sound discretion of the trial court, and the court's denial of the motion will not be disturbed in the absence of a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision. State v. Ball, 344 N.C. 290, 474 S.E.2d 345 (1996), cert. denied, ___ U.S. ___, 137 L. Ed. 2d 561 (1997). In this case, defendant has shown no abuse of discretion. Moreover, although defendant claims that the denial of his motion to sequester violated a number of his state and federal constitutional rights, he made no constitutional claim at trial. Constitutional questions not raised and ruled upon at trial shall not ordinarily be considered on appeal. State v. Gibbs, 335 N.C. 1, 436 S.E.2d 321 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). Accordingly, this assignment of error is overruled.
By his next assignment of error, defendant contends that the trial court erroneously instructed new grand jurors on the function of the grand jury in the presence of the members of his jury pool, five of whom eventually served on the jury that heard his case. Specifically, defendant argues that those five aforementioned venire members may have been induced into giving undue weight to the fact that defendant was indicted when they decided his guilt. We disagree.
No mention was ever made of the indictments returned against defendant. Nor has defendant shown any bias on the part of the five jurors who heard the grand jury instruction. We have previously stated that "mere observation by the jury of other lawful courtroom processes will not be presumed to result in prejudice to defendant." State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (1979). This assignment of error is overruled.
By another assignment of error, defendant contends that the prosecutor improperly asked prospective jurors if they could write the word "death" on the recommendation form and if they could announce their verdict of death in open court. He argues that this "improper extraction of promises" erroneously informed the jurors that they would each be required to sign the verdict form and announce the verdict when only the foreperson would be required to do so. We find no error.
This issue was addressed by this Court in State v. White, 343 N.C. 378, 471 S.E.2d 593, cert. denied, ___ U.S. ___, 136 L. Ed. 2d 229 (1996). The defendant in White argued that the prosecutor improperly asked a prospective juror whether he could "come back into the courtroom, given [his] religious beliefs, and stand up in front of this man and say, `I sentence you to be executed.'" Id. at 386, 471 S.E.2d at 598. We concluded that although the question exaggerated "the juror's actual role in the sentencing process, [it] was fairly aimed at determining the extent of [the juror's] reservations about imposing the death penalty." Id. at 387, 471 S.E.2d at 598. In this case, we conclude that the prosecutor's questions legitimately sought to determine the jurors' ability to carry out their duties in defendant's capital trial. Therefore, this assignment of error is overruled.
Defendant next contends that the trial court improperly refused to permit him to question fifteen prospective jurors before excusing them for cause based upon their opposition to the death penalty. In a number of instances, defendant argues, the venire members' responses to questioning were ambiguous and required further interrogation. Defendant's contentions are without merit.
The decision whether to allow a defendant an opportunity to rehabilitate a prospective juror challenged for cause rests within the sound discretion of the trial court. State v. Stephens, 347 N.C. 352, 493 S.E.2d 435 (1997), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 67 U.S.L.W. 3231 (1998). In this case, defendant cannot show an abuse of that discretion. The trial court properly denied any attempt to rehabilitate based upon the fifteen prospective jurors' answers to voir dire questions. Thus, defendant can show no error.
Even assuming defendant could show error, the record shows that he requested an opportunity to rehabilitate only three of the fifteen prospective jurors. The record further reveals that defendant did not exhaust his peremptory challenges. This demonstrates defendant's satisfaction with the jury which was empaneled, and he cannot show prejudice from the trial court's rulings on rehabilitation. State v. Miller, 339 N.C. 663, 455 S.E.2d 137, cert. denied, 516 U.S. 893, 133 L. Ed. 2d 169 (1995). This assignment of error is overruled.
By another assignment of error, defendant contends that the trial court improperly failed to remove prospective jurors Fore, Faw, and Fairchild for cause. Defendant argues that these three prospective jurors were biased against defendant by virtue of their opinions about his guilt, exposure to pretrial publicity, or affiliations with prosecution witnesses.
In order to show prejudice by the denial of his challenge for cause, defendant must show that he exhausted his peremptory challenges, made a renewed challenge for cause which was denied, and requested and was denied an additional peremptory challenge. State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994). An examination of the record reveals defendant did not satisfy any of the foregoing requirements for appellate review. Thus, defendant has waived this assignment of error.
Defendant next contends that the trial court erroneously removed prospective juror Nancy Cooper for cause based upon her psychological disabilities. More specifically, defendant argues that the record does not establish that Ms. Cooper's mental-health problems would have prevented her from serving as a juror. We disagree.
Before voir dire began, the trial court welcomed the venire and explained the qualifications for service as a juror, which included a requirement that each juror be "physically and mentally competent." When the trial court asked if all of the prospective jurors met those requirements, Ms. Cooper asked to approach the bench to discuss her personal health. Later, when the trial court asked if there were any claims of undue hardship, Ms. Cooper again raised her hand. She explained that she was bipolar manic-depressive, had been under the care of New River Mental Health since 1982, had been hospitalized, and sees a counselor regularly. The trial court excused her from jury service.
Decisions concerning the excusal of prospective jurors are matters ordinarily left to the sound discretion of the trial court. State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1997), cert. denied, ___ U.S. ___, 140 L. Ed. 2d 131 (1998). In this case, the trial court did not abuse its discretion by excusing prospective juror Cooper. It is apparent from the record that Ms. Cooper was herself concerned about her ability to serve on the jury and the impact which service might have on her mental health. Moreover, as we noted above, defendant expressed his satisfaction with each of the jurors who decided his case. Accordingly, this assignment of error is overruled.
By another assignment of error, defendant contends that the trial court erred by authorizing two law enforcement officers who were potential prosecution witnesses at trial to have ex parte contact with prospective jurors and failed to take corrective action when it learned of such contact. Specifically, defendant complains that on the morning his trial began, the two chief investigating officers in this case, Captain Steve Houck and Detective Peyton Colvard, assisted the trial court by passing out Bibles to the venire. Although the trial court instructed the officers not to have further contact with prospective jurors, defendant argues that the court erred by not questioning the venire members about the nature and extent of the contact and whether it would affect their ability to be fair and impartial. This argument is without merit.
This Court has held that in cases where witness contact with the jury occurs, "prejudice will be conclusively presumed only `where a witness for the State acts as custodian or officer in charge of the jury.'" State v. Flowers, 347 N.C. 1, 20, 489 S.E.2d 391, 402 (1997) (quoting State v. Jeune, 332 N.C. 424, 431, 420 S.E.2d 406, 410 (1992)), cert. denied, ___ U.S. ___, 140 L. Ed. 2d 150 (1998). In order for this Court to determine whether the witness acted in such capacity, we must look to the facts and circumstances surrounding the case and not just to the actual lawful authority of the witness. Id. In the case at bar, the record does not indicate that Captain Houck and Detective Colvard ever had custody or control of the jury or were ever with the jurors out of the presence of the trial court. Their contact with the jurors merely consisted of passing out Bibles and telling the venire members which hand to raise and which hand to place on the Bible. We conclude that this brief contact was legally insignificant.
By another assignment of error, defendant contends that the prosecutor improperly discriminated on the basis of gender by using eight of the eleven peremptory challenges he exercised to strike women from the jury panel. Defendant argues that this "highly disproportionate striking pattern" establishes a prima facie case of gender discrimination. We disagree.
"As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike." J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 144-45, 128 L. Ed. 2d 89, 106-07 (1994). This Court has held that the same type of factors which may be relevant in determining whether a Batson violation has occurred are relevant in resolving whether a defendant has established a prima facie showing of intentional gender discrimination. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, ___ U.S. ___, 139 L. Ed. 2d 177 (1997). These factors include the gender of the defendant, the victim and any key witnesses; questions and comments made by the prosecutor during jury selection which tend to support or contradict an inference of gender discrimination; the frequent exercise of peremptory challenges to prospective jurors of one gender that tends to establish a pattern, or the use of a disproportionate number of peremptory challenges against venire members of one gender; whether the State exercised all of its peremptory challenges; and the ultimate gender makeup of the jury. Id. at 671, 483 S.E.2d at 410.
In the case sub judice, defendant does not raise any of the aforementioned factors other than his bare assertion that the prosecution utilized eight peremptory challenges in an improper fashion. We note that the record does not reveal the gender of the jurors that heard defendant's case or the overall percentage of prospective female jurors in the venire. Based upon this record, we cannot conclude that defendant established a prima facie showing of gender discrimination in the jury selection process in this case. Thus, this assignment of error is overruled.
By another assignment of error, defendant makes several arguments regarding the admission into evidence at his trial of a handwritten note and handwriting exemplars. First, defendant contends that the note was inadmissible because it was protected by spousal privilege. Second, defendant argues that the prosecution allowed a witness to perjure himself through his testimony regarding the note. Defendant also claims that the warrant for handwriting exemplars was improperly issued because the application for it relied on privileged communications and because the magistrate applied the wrong standard for determining probable cause. These contentions are without merit.
The note at issue read: "I Eric Call hearby [sic] declare that my wife Virginia Cox Call had absulutly [sic] no knolede [sic] of what might have taken place," and was signed "Eric L Call." At trial, Alan Varden testified that he found the note in his residence and turned it over to police. Notwithstanding this testimony, defendant complains that the affidavit in support of the application for the writing exemplars stated that Virginia Call gave the note to investigators. Based on the foregoing, defendant argues that the note was a confidential communication protected by spousal privilege and was thus inadmissible against him. We disagree.
A witness-spouse may not voluntarily testify regarding confidential communications over the objection of the defendant-spouse who asserts the privilege. State v. Holmes, 330 N.C. 826, 412 S.E.2d 660 (1992). In this case, however, Mrs. Call did not testify, nor were her statements to police presented as evidence at trial. We note, significantly, that defendant did not claim the privilege at trial. Rather, he contested the evidence presented by attempting to show he was not the author.
Furthermore, spousal privilege does not bar those non-confidential, out-of-court statements introduced against a defendant-spouse for the State through a third party. State v. Rush, 340 N.C. 174, 456 S.E.2d 819 (1995). The trial court in this case properly allowed Varden to testify that defendant told him about the note and that the note was found in Varden's home. In addition, it is clear from the language of the note that defendant did not leave the note for Mrs. Call, but for anyone who might ...