The opinion of the court was delivered by: Orr, Justice.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from two judgments imposing sentences of death entered by Smith (W. Osmond, III), J., on 18 August 1995 in Superior Court, Wayne County, upon a jury verdict of guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to additional judgments for two counts each of first-degree kidnapping and robbery with a firearm was allowed 17 July 1997. Heard in the Supreme Court 11 March 1998.
This case arises out of the shooting deaths of Margaret Strickland and Bobby Gene Stroud. On 5 July 1994, defendant was indicted for two counts of first-degree murder, two counts of first-degree kidnapping, two counts of armed robbery, and one count of conspiracy to commit armed robbery and murder. Prior to trial, the State took a voluntary dismissal of the conspiracy charge. Defendant was tried before a jury, and on 11 August 1995, the jury found defendant guilty of all remaining charges. Following a capital sentencing proceeding, based upon the jury's finding defendant guilty of both murders on the basis of premeditation and deliberation and the felony murder theory, the jury recommended sentences of death for each of the murder convictions. In accordance with the jury's recommendation, the trial court entered two sentences of death. The trial court additionally sentenced defendant to forty years' imprisonment for each of the first-degree kidnapping convictions and for each of the armed robbery convictions, to be served consecutively to each other and concurrently with the sentences of death.
After consideration of the assignments of error brought forward on appeal by defendant and a thorough review of the transcript of the proceedings, the record on appeal, the briefs, and oral arguments, we conclude that defendant received a fair trial, free from prejudicial error.
At trial, the State's evidence tended to show the following: On the night of 21 January 1994, defendant was playing cards with Edna Raynor at her house. While at Raynor's, defendant's cousin, James Leggett, phoned defendant and told him that he and Kwame Teague were on their way to pick defendant up. When they arrived, defendant got into the car with Leggett and Teague, and they drove off. According to defendant, when he asked where the car came from, Teague said to "ask the people in the back." When defendant asked "if there was someone in there," referring to the trunk, he heard a man moan.
The three men then proceeded to a field near Rollingwood subdivision in Wayne County. Upon reaching the field, the two victims, Strickland and Stroud, were ordered out of the trunk at gunpoint and forced to strip. Stroud was then shot three times with a .25-caliber pistol, and Strickland was shot three times with a .32-caliber pistol. Subsequently, Leggett, Teague, and defendant went to the home of Bernice Lemons, defendant's aunt, where they spent the night.
The next day, the bodies of the victims were discovered in a field near Rollingwood Drive. Bobby Ray Kelly, a special deputy for the Sheriff's Department, arrived at the scene within approximately twelve to fifteen minutes of being notified of a possible shooting. Once there, Deputy Kelly secured the area and waited for additional help.
Subsequently, the bodies were identified as those of Bobby Gene Stroud and Margaret Strickland. Dr. Debra Radish, an expert in the field of pathology, performed the autopsy on Stroud. Dr. Radish testified that there were three separate gunshot wounds to Stroud's body. In Dr. Radish's opinion, Stroud "most likely" died five to ten minutes after suffering from a gunshot wound that entered his body in the left anterior temple and exited on the right of the anterior or front midline. The wound track was "from left to right through the brain slightly upward from the front to the back of his head." In Dr. Radish's opinion, "the cause of death in this case was due to [a] gunshot wound of the head."
Dr. Karen Chancellor, also an expert in the field of forensic pathology, performed the autopsy on Strickland. Although Strickland was shot three times, the bullets inflicted four wounds because one of them entered through her right forearm and struck her in the chest. One gunshot wound was above Strickland's left ear. In Dr. Chancellor's opinion, the gun was held no farther than one or two inches from Strickland's head when this wound was inflicted. Dr. Chancellor concluded that Strickland died from the "gunshot wound to the head and to the chest."
Ten days after the murders, on 31 January 1994, defendant assaulted and shot James Taylor in Taylor's home. Taylor's wound, however, was not fatal. Ballistics tests established that the gun which was used in the Taylor assault was also used in the Strickland murder. On the same day as the Taylor assault, defendant was arrested.
After being informed of his Miranda rights, defendant made several statements to police. In his final statement, defendant told the police that he was at Edna Raynor's house when Leggett and Teague phoned and told him that they were on their way to pick him up. Defendant stated that once they arrived,
[he] asked where the car came from. Kwame said ask the people in the back. I turned around and said, yo, is someone in there. I heard a man moan. I said, man, you are bull shitting me. I said what's up. Kwame said make sure your prints ain't in this car. I looked and Kwame and Larry both had on white rubber gloves. Kwame drove for a little ways and stopped in a field with hills of dirt and tall weed.
According to defendant, Kwame then got the victims out of the car and ordered them to undress. Defendant stated that
Kwame pulled the man's pants off. The man took his own shirt off. The woman had pulled off, pulled all her clothes off. She was squatted on the ground. The man was lying on his side. Kwame grabbed the man and said, I am fixing to do him. Kwame shot him in the back of the head more than once. The woman started screaming and started running. Larry shot up in the air and ran and caught the woman. Larry made her lie, correction, Larry made her lay on the ground. She sat on her butt. Kwame asked her if she knew him. She stuttered. She hesitated. Kwame said, do her, Larry. Do her. Larry shot her in the back of the head. She started treating [sic] to get up. Larry slung her on the ground and shot her again in the side of the head. He shot her again in the stomach. We got back in the car.
The defendant also presented evidence during the guilt phase. Denio Edwards, a friend of defendant's, testified that he was with defendant, Jerry Newsome, and others at James Taylor's house on 30 January 1994. He testified that he heard defendant say that he had "made a lick against two white people for several thousand dollars" but that he did not hear defendant say he had killed two white people. Defendant testified that on 21 January 1994, Edna Raynor took him to her house, where he played cards and had one mixed drink. Defendant's testimony concerning the events on the night of 21 January 1994 mirror his statement to law enforcement officers as set out above. Defendant admitted that he lied to law enforcement officers in his first statement when he said that he did not get into the car with Teague and Leggett. He also admitted that he tried to get Raynor to provide him with an alibi and that she refused. He denied, however, that he planned the kidnapping and robbery of Stroud and Strickland and asserted that the only person he shot was James Taylor.
During the sentencing phase, defendant presented several witnesses who testified regarding defendant's family background and upbringing. Defendant also presented the testimony of James Davis and Antoine Dixon. The trial court allowed their testimony after both Leggett and Teague asserted their Fifth Amendment privilege against self-incrimination. Davis, Leggett's cellmate in the Wayne County jail, testified that Leggett told him that he, Teague, and defendant "robbed somebody in the woods." He also stated that Leggett told him that Teague shot the man and that Leggett shot the woman in the back of her head.
Dixon testified that during February and March 1994, he was in jail with Leggett. According to Dixon, Leggett said that during the robbery, defendant started "hitting the man with his fists." Dixon further testified that Leggett said that Teague shot the man, and then he, Leggett, shot the woman in the head twice.
In rebuttal, the State presented the testimony of Sergeant Ken Taylor. Taylor testified that in Leggett's first statement to the police, he denied any involvement in the kidnappings, robberies, and murders. In his second statement, Leggett admitted involvement but stated that it was defendant who had shot the gun. Detective George Raecher also testified concerning a statement that Teague made to the police. In the statement, Teague admitted involvement in the crimes but denied actually firing the gun. Instead, Teague claimed that defendant "shot the man while he was laying [sic] on the ground." Teague further stated that as he ran off, he heard several more shots.
On appeal, defendant first contends that his constitutional right to be present at every stage of his capital trial was violated. Specifically, defendant contends that this right was violated when (a) the jurors took their oath outside of defendant's presence, and (b) the clerk spoke with prospective jurors outside of defendant's presence. Defendant argues that these incidents violate the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 23 of the North Carolina Constitution. We do not agree.
The Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution guarantee the right of a criminal defendant to be present at every critical stage of his trial. State v. Buchanan, 330 N.C. 202, 208, 410 S.E.2d 832, 836 (1991). Our Court has interpreted the North Carolina Constitution as guaranteeing the accused the right to be present at "all times during the trial when anything is said or done which materially affects defendant as to the charge against him." State v. Chapman, 342 N.C. 330, 337-38, 464 S.E.2d 661, 665 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996).
First, we will address defendant's contention that the trial court violated his constitutional rights by failing to require that prospective jurors take their oath in defendant's presence. Defendant argues that "[t]he swearing in of prospective jurors is a critical part of the trial, which the defendant is constitutionally entitled to view."
In State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996), this Court stated that "[d]efendant's right to be present at all stages of his trial does not include the right to be present during preliminary handling of the jury venires before defendant's own case has been called." Id. at 498, 476 S.E.2d at 309. This Court went on to state that
[defendant] had no right to be present when prospective jurors were preliminarily sworn, oriented and qualified for jury service in general, without regard to any particular case or trial. Further, because defendant Workman's trial had not yet commenced, these "proceedings" could not have been conducted during a stage of defendant Workman's capital trial.
Id. at 498, 476 S.E.2d at 310.
Similarly, in the present case, defendant had no right to be present when the prospective jurors were preliminarily sworn in. The trial court's introduction of the parties and other remarks to the prospective jurors once they were brought into the courtroom demonstrate that the jurors had been preliminarily sworn, oriented, and qualified for jury service generally, without regard to any particular case or trial.
Second, defendant contends that his constitutional right to be present was violated by the clerk's ex parte contact with jurors. Defendant argues that the selection of the jury is a stage of a capital trial at which defendant must be present. Defendant further argues that because there is no record of the content of the clerk's contact with the jurors, and in particular, nothing showing that the clerk's contact was limited to the juror questionnaire inquiry, the violation of defendant's right to be present cannot be held harmless.
In the present case, voir dire was conducted on an individualized basis. Prospective jurors awaiting questioning were located in a room outside the courtroom. During jury selection, defense counsel brought to the trial court's attention the fact that the clerk had entered the room where prospective jurors were gathered and communicated with them outside the presence of defendant. The following exchange took place between the trial court and defense counsel:
[DEFENSE COUNSEL]: Your Honor, we were just handed another questionnaire indicating -- by the bailiff -- that there was someone else who also had not filled out a jury questionnaire. I know [the district attorney] discussed it and had asked that you bring the jury back in and make inquiry if there was anyone else who hadn't filled out a questionnaire, to go ahead so we do not have that problem again. Apparently the clerk asked that question back there. I don't know if it was verified, I have no idea what was said. I would just like to make sure that we don't have any other communication that way again. And, of course, if there is a need to check again to see if there's anyone else who has not done a questionnaire.
I don't think the clerk's communication with the jury would be improper, in that the clerk is responsible for seeing that the jurors are assembled here or summoned to be here, so forth. And one of the requirements, as I understand, in this case, was that either an order or agreement that jury questionnaires would be submitted to jurors to be filled out [sic]. So it seems to me the clerk was just carrying out that duty. Now, if you have any evidence of other communication --
[DEFENSE COUNSEL]: I have no idea what was communicated, your Honor. All I know is I'm handed a questionnaire. And I'm not questioning the situation. I'm just saying it's not on the record. Everything is supposed to be on the record with this jury . . . . But in any event, I have no other evidence of anything else, your Honor.
In State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995), this Court addressed the issue of whether the trial court erred in ordering the bailiff to engage in unrecorded communications with prospective jurors. Defendant specifically complained of the trial court's instructing the bailiff to "have the jurors fill out the [jury voir dire] questionnaires and then duplicate them." Id. at 86, 446 S.E.2d at 551. Defendant also noted that the trial court instructed the bailiff to "put the jurors in the jury room on break" and to "have them to return back to the jury room." Id. Further, defendant complained of the clerk's administrative duties of calling the jury roll and explaining to the jurors what time they needed to arrive at court. This Court noted that the challenged communications "were of an administrative nature and did not relate to the consideration of defendant's guilt or innocence" and concluded that defendant's presence would not have had a reasonably substantial relation to his opportunity to defend. Id.
The same can be said in the present case. In distributing and gathering the questionnaires, the clerk merely sought to carry out the administrative duties which the trial court had requested. As we stated in Bacon, "[d]efendant has failed to demonstrate how his presence would have been useful to his defense in these instances, and we thus conclude that no constitutional violation has occurred." Id. at 86, 446 S.E.2d at 551-52. For the same reason, we hold that there has been no violation of defendant's constitutional rights. Accordingly, this assignment of error is overruled.
Next, defendant contends that the trial court violated the constitutional mandate that courts be open to the public. U.S. Const. amend. VI; N.C. Const. art. I, § 18. Specifically, defendant argues that the sign posted on the courtroom door advising members of the public not to enter unless they had business in the court violated his constitutional rights. We disagree.
In the present case, prior to the beginning of jury selection, the bailiff requested the permission of the trial court to post a sign on the entrance to the courtroom. The following exchange occurred with regard to the posting of the sign:
Mr. Hartzog, I believe you want to bring something to the Court's attention on the record?
THE BAILIFF: Yes sir. We got a brief notice, with the Court's permission, to put on the door the notice "do not enter courtroom unless you have business in here. All persons entering or opening courtroom doors will be searched for weapons." We've used a very similar notice in murder trials in the past, and they work very well.
And I believe you indicated to me counsel for the defendant, as well as the state, have viewed that sign?
Let me ask on the record, then. Does the defendant have any objection? Does the defendant consent to the posting of that sign?
[DEFENSE COUNSEL]: Your Honor, we don't have a problem to the posting, but we suggest it be posted at the other superior court door, as well. They'd be entering at both doors. Maybe that's the rule of the Court, in both superior courts. I would just contend that would be appropriate for both doors for this defendant.
And does the state consent to such sign?
[THE STATE]: I really don't care, your Honor. That's fine.
The North Carolina Constitution requires that "[a]ll courts shall be open." N.C. Const. art. I, § 18. Additionally, the Sixth Amendment to the United States Constitution mandates that "[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. However, as the United States Supreme Court has noted, "[a]lthough the right of access to criminal trials is of constitutional stature, it is not absolute." Globe Newspaper Co. v. Superior Ct. for Norfolk County, 457 U.S. 596, 606, 73 L. Ed. 2d 248, 257 (1982). The United States Supreme Court has stated that a trial judge may "in the interest of the fair administration of Justice, impose reasonable limitations on access to a trial." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18, 65 L. Ed. 2d 973, 992 n.18 (1980). The Supreme Court further noted that in determining whether such limitations are warranted, the focus should be on "`whether that control is exerted so as not to deny or unwarrantedly abridge . . . the opportunities for the communication of thought and the Discussion of public questions immemorially associated with resort to public places.'" Id. at 581-82, 65 L. Ed. 2d at 992 (quoting Cox v. New Hampshire, 312 U.S. 569, 574, 85 L. Ed. 1049, 1053 (1941)).
In People v. Colon, 71 N.Y.2d 410, 521 N.E.2d 1075, 526 N.Y.S.2d 932, cert. denied, 487 U.S. 1239, 101 L. Ed. 2d 943 (1988), the New York Court of Appeals succinctly discussed some of the limitations which may be placed on a defendant's right to a public trial. In Colon, the New York court stated that
the right to a public trial has always been recognized as subject to the inherent power of trial courts to administer the activities of the courtroom; suitably within the trial court's discretion is the power to monitor admittance to the courtroom, as the circumstances require, in order to prevent overcrowding, to accommodate limited seating capacity, to maintain sanitary or health conditions, and generally to preserve order and decorum in the courtroom.
Id. at 416, 521 N.E.2d at 1078, 526 N.Y.S.2d at 935. Further, it has been stated that "[w]e should not be hasty to reverse a trial Judge's actions in establishing order in his courtroom, unless his actions are not designed to maintain dignity, order, and decorum, and instead deny or abridge unwarrantedly the opportunities for the communication of thought and the Discussion of public questions immemorially associated with resort to public places." Commonwealth v. Berrigan, 509 Pa. 118, 132, 501 A.2d 226, 234 (1985).
In North Carolina, the presiding Judge is authorized to "impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings." N.C.G.S. § 15A-1034(a) (1997). It is apparent from the record that the posting of the sign was an attempt to ensure the orderliness of the courtroom proceedings. Even defense counsel was a proponent of this device. In fact, defense counsel requested that the sign be placed at each entrance to the courtroom. As this Court stated in State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981), "[w]hile every reasonable presumption will be indulged against a waiver of fundamental constitutional rights by a defendant in a criminal prosecution, a defendant may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it." Id. at 341-42, 279 S.E.2d at 801 (citation omitted).
Further, in the present case, it is important to note that we are not dealing with an order of closure, but rather with the posting of a sign. This sign indicated that only persons having business in the courtroom were allowed to enter. However, this did not eliminate such persons as defendant's family, the press, or others interested in observing the trial. Defendant has failed to bring to our attention any person who was prevented from entering the courtroom. Further, notifying persons entering the courtroom that they will be "searched for weapons" is certainly a legitimate and permissible measure to maintain the orderliness of the courtroom. See Brown v. Doe, 2 F.3d 1236 (2d Cir. 1993) (holding that security measures taken at a state courthouse are so peculiarly within the purview and discretion of the state judiciary as to be beyond review on a habeas corpus petition absent a strong showing that the measures taken were inherently prejudicial and that defendant suffered actual prejudice), cert. denied, 510 U.S. 1125, 127 L. Ed. 2d 403 (1994).
In support of his position, defendant cites to both Globe Newspaper Co., 457 U.S. 596, 73 L. Ed. 2d 248, and Richmond Newspapers, Inc., 448 U.S. 555, 65 L. Ed. 2d 973. However, these cases are not applicable to the present case. Both Globe and Richmond assert the public's right of access to criminal trials under the First and Fourteenth Amendments to the United States Constitution. As this Court noted in State v. Burney, 302 N.C. 529, 276 S.E.2d 693 (1981), "[d]efendant cannot demand a new trial upon the assertion of an alleged violation of the constitutional rights of a third person under these particular facts." Id. at 537, 276 S.E.2d at 698.
Accordingly, we hold that, under the facts and circumstances of this case, defendant's constitutional right to a public trial was not violated. This assignment of error is without merit.
Next, defendant contends that the trial court erred by admitting evidence of an unrelated assault allegedly committed by defendant. Defendant argues that the State's reliance on this evidence "was so extensive and prejudicial that it rose to the level of a due process violation under the Fourteenth Amendment [to] the United States Constitution and Article I, §§ 19 and 23 of the North Carolina Constitution." Defendant contends that the use of this evidence entitles him to a new trial. We do not agree.
In the present case, the State attempted to consolidate the charges against defendant arising out of the Strickland/Stroud murders with the charges pending against defendant involving the assault of James Taylor. The trial court denied the State's motion to consolidate these charges. However, the trial court subsequently ruled that the evidence regarding the Taylor assault was admissible under Rule 404(b) for the purposes of showing identity, motive, and intent. Defendant concedes that some limited evidence about the assault was admissible under Rule 404(b) because "it tended to show that the defendant had possession of one of the guns used in the charged crimes ten days after the homicides." However, defendant maintains that many of the details admitted into evidence "were entirely unrelated to this purpose and should have been excluded under Rule 404(b)." Specifically, defendant contends that the trial court erred by admitting (1) Taylor's testimony regarding the assault, (2) the testimony of three law enforcement officers concerning the investigation of the Taylor incident, and (3) eight photographs of Taylor's injuries and the crime scene.
The admissibility of specific acts of misconduct by the defendant is governed by Rule 404(b), which provides that [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (1992). Rule 404(b) is a "general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
In order for evidence of defendant's prior crimes or bad acts to be admissible under Rule 404(b) to show identity of the perpetrator in the crime charged, there must be "`some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes.'" State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986) (quoting State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545 (1983)). In the present case, the evidence shows that both of the victims were taken by surprise, confined in the trunk of the car, and forced to strip. They were then robbed, and each of them was shot in the head. James Taylor was also taken by surprise, assaulted, and robbed. More importantly, Taylor was shot in the back of the head using the same gun that killed Margaret Strickland. Here, because the evidence was relevant to show identity, it was properly admitted.
The crux of defendant's argument appears to be that even if admissible under Rule 404(b), evidence of the prior assault should have been excluded under Rule 403 of the North Carolina Rules of Evidence. Rule 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." N.C.G.S. § 8C-1, Rule 403 (1992). However, the exclusion of the evidence under Rule 403 is a matter generally left to the sound discretion of the trial court. State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). Abuse will be found only where the trial court's ruling is "manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision." Id.
Here, the trial court did not abuse its discretion by admitting evidence of misconduct otherwise admissible under Rule 404(b). In fact, the trial court guarded against the possibility of prejudice to defendant by providing the jury with the following limiting ...