The opinion of the court was delivered by: Parker, Justice.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Everett, J., on 26 September 1996 in Superior Court, Martin County, upon a jury verdict of guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to an additional judgment for robbery with a dangerous weapon was allowed by the Supreme Court on 17 October 1997. Heard in the Supreme Court 26 May 1998.
Defendant Shawn Derrick Bonnett was indicted on 22 January 1996 for the first-degree murder of Robert Stancil Hardison ("victim") and for robbery with a dangerous weapon. Three co-defendants, Christopher Moore, Richard Smith, and Jimmy Smith, were also indicted but were not tried together. The jury found defendant guilty of first-degree murder on the bases of premeditation and deliberation and the felony-murder rule. Following a capital sentencing proceeding, the jury recommended a sentence of death; and the trial court entered judgment in accordance with that recommendation. The jury also found defendant guilty of robbery with a dangerous weapon, and the trial court sentenced defendant to a consecutive sentence of 129 to 164 months' imprisonment.
The State's evidence tended to show the following. Between 4:30 and 5:30 p.m. on 4 January 1996, defendant and his co-defendants drove to Hardison's General Merchandise, which was owned and operated by the victim and his wife and located in the Farm Life community of rural Martin County outside Williamston, North Carolina. Richard Smith (a/k/a "Joe Raggs") drove a yellow GEO Storm, Jimmy Smith (a/k/a "Little Jimmy") was in the passenger seat, and defendant and Christopher Moore sat in the rear seats. Moore and Little Jimmy went inside the victim's store to buy some beer. They got back into the car and drove around for five or ten minutes. At approximately 6:30 p.m. they stopped at the store again, and defendant and Moore went inside to buy beer. Another five to ten minutes later, they returned a third time; and Joe Raggs bought some beer. While riding around some more, Little Jimmy said to the others, "we all have to stick together whatever happen[s], because we're, we're about to go ahead and hit this store." After they agreed to "stick together," Joe Raggs said, "We're going to have to smoke the old m-----f-----."
They continued to drive past the store until there were no customers inside. At about 7:30 p.m. they pulled into the store's parking lot, and defendant handed a gun to Little Jimmy. Joe Raggs stayed in the car. Moore and Little Jimmy went to the beer cooler, while defendant stood next to the counter. Little Jimmy placed a beer on the counter; and when the victim approached in order to ring up the sale, Little Jimmy pulled out the gun and shot the victim three or four times. Then Moore took the victim's gun from the victim's back pocket, and defendant took the money box.
They drove to a motel in Greenville and divided up the money. They decided to return to Williamston, and on the way a highway patrolman, who had been given a description and license plate number of the yellow GEO Storm, pursued them. Joe Raggs pulled into the yard of a house, and they all entered the house. Joe Raggs and Little Jimmy decided to go out the front door and were arrested. Moore stayed inside, but he left the house when the police instructed him to do so and was arrested. Defendant escaped through the back door. On 8 January 1996 the police discovered the whereabouts of defendant, and he was arrested without incident.
Defendant presented no evidence at the guilt phase.
Additional facts will be presented as needed to discuss specific issues.
By his first assignment of error, defendant contends that pretrial publicity surrounding the murder was so extensive as to require a change of venue or a special venire from another county. He argues that this publicity made it impossible for him to receive a fair trial by a Martin County jury.
N.C.G.S. § 15A-957 provides that if there exists so great a prejudice against the defendant in the county in which he is charged that he cannot obtain a fair and impartial trial, the court must either transfer the case to another county or order a special venire from another county. State v. Perkins, 345 N.C. 254, 275, 481 S.E.2d 25, 33, cert. denied, ___ U.S. ___, 139 L. Ed. 2d 64 (1997). The burden is on a defendant to establish that "it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed." State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d 339, 347 (1983). A defendant must "establish specific and identifiable prejudice against him as a result of pretrial publicity . . . [by showing] 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. Billings, ___ N.C. ___, ___, ___ S.E.2d ___, ___, 1998 WL 237163, at *2 (May 8, 1998) (No. 216A96) (emphasis omitted). The determination of whether defendant has carried his burden lies within the sound discretion of the trial court. State v. Barnes, 345 N.C. 184, 204, 481, S.E.2d 44, 54 (1997), cert. denied, ___ U.S. ___, 139 L. Ed. 2d 134, and cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (1998).
Our review of the record in this case reveals that the trial court did not err in denying defendant's motion for a change of venue or special venire. While several jurors selected indicated that they had read or heard about the case, all but one stated that they had not formed an opinion about the case, could set aside any information, and could be fair and impartial. Juror Bullock, who had formed an and knew the victim, stated unequivocally that he could set his aside and base his decision in this case on the evidence.
However, our examination does not end here. This Court recognized in Jerrett that where the totality of the circumstances reveals that a county's population is so "infected" with prejudice against a defendant that he cannot receive a fair trial, the defendant has met his burden. State v. Jerrett, 309 N.C. at 258, 307 S.E.2d at 349. In Jerrett we noted that "the crime occurred in a small, rural and closely-knit county where the entire county was, in effect, a neighborhood." Id. at 256, 307 S.E.2d at 348. The population of Alleghany County was 9,587 people, id. at 252 n.1, 307 S.E.2d at 346 n.1; the voir dire revealed that one-third of the prospective jurors knew the victim or some member of the victim's family, and many jurors knew potential State's witnesses, id. at 257, 307 S.E.2d at 348-49. Furthermore, the jury was examined collectively on voir dire, thus allowing prospective jurors to hear that other prospective jurors knew the victim and the victim's family, that some had already formed opinions, and that some would not be able to give the defendant a fair trial, id. at 257-58, 307 S.E.2d at 349.
This case is distinguishable from Jerrett. Martin County's population at the time of the crime was over 25,000. North Carolina Manual 1995-1996, at 970 (Lisa A. Marcus ed.). Further, the level of familiarity that the Jerrett jurors had with the victim, the victim's family, and witnesses is not present in this case. While a number of prospective jurors had heard or read about the case, in viewing the totality of the circumstances, we conclude that there is no reasonable likelihood that pretrial publicity prevented defendant from receiving a fair trial in Martin County and that the trial court did not err by refusing to grant defendant's motion for change of venue or a special venire.
Defendant further contends that included within the totality of circumstances should be the fact that his co-defendants' trial was transferred on account of pervasive prejudice. However, co-defendants' trial was subsequent to defendant's trial; and publicity from defendant's trial most likely created much of the prejudice against co-defendants such that they could not obtain a fair and impartial trial in Martin County.
Defendant next contends that the trial court erred in denying his motion for individual voir dire of prospective jurors. Defendant argues that the pretrial publicity was so great that it was reasonably likely that prospective jurors would make a decision upon pretrial information instead of the evidence presented at trial.
N.C.G.S. § 15A-1214 provides in pertinent part that "[i]n capital cases the trial Judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection." N.C.G.S. § 15A-1214(j) (1997). The decision to deny individual voir dire of prospective jurors rests in the trial court's sound discretion, and this ruling will not be disturbed absent a showing of abuse of discretion. State v. Barnard, 346 N.C. 95, 101, 484 S.E.2d 382, 385 (1997).
Defendant has offered no convincing argument that the trial Judge abused his discretion in not allowing individual voir dire. "A defendant does not have a right to examine jurors individually merely because there has been pretrial publicity." State v. Burke, 342 N.C. 113, 122, 463 S.E.2d 212, 218 (1995). A careful examination of jury selection reveals no harm to defendant resulting from the denial of his motion. We hold that the trial court did not err in denying defendant's motion.
By his next assignment of error, defendant argues that the trial court erred in denying defendant's motion to preclude the State from seeking the death penalty in that, inter alia, the death penalty would be disparate, disproportionate, excessive, and cruel and unusual punishment under the United States and North Carolina Constitutions. Defendant acknowledges that this issue has already been decided adversely to him, and we need not consider it further. See State v. Robinson, 342 N.C. 74, 88, 463 S.E.2d 218, 226 (1995) (holding that no Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140 (1982), issue arises when defendant was convicted of first-degree murder upon the theory of premeditation and deliberation in addition to the felony-murder theory), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793 (1996).
Next, defendant contends that the trial court erred in denying his motion to bifurcate and his alternate motion to continue so that defendant would not be tried or sentenced until after Richard Smith and Jimmy Smith were tried. The crux of defendant's concern is that if defendant was tried and sentenced prior to the Smiths' case he might receive a death sentence if convicted; and Richard Smith and Jimmy Smith might receive life sentences at a later trial, which is in fact what occurred. Defendant contends that he was less culpable than the Smiths and that, if sentenced after them, he should be able to argue to his sentencing jury the fact that the Smiths received life sentences.
Defendant concedes that this Court has previously held that a defendant is not entitled to separate jury trials, one to determine guilt or innocence and another to determine punishment, State v. Holden, 321 N.C. 125, 133, 362 S.E.2d 513, 520 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988); however, he claims that the facts of this case are distinguishable and warrant the particular relief he seeks. We disagree.
In State v. Bond we held that, for purposes of sentencing, the fact that a co-defendant received a lesser sentence "was not admissible as a mitigating circumstance because such evidence did not pertain to `defendant's character, record, or the nature of his participation in the offense.'" State v. Bond, 345 N.C. 1, 34, 478 S.E.2d 163, 180 (1996) (quoting State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 447 (1981)), cert. denied, ___ U.S. ___, 138 L. Ed. 2d 1022 (1997). Thus, this assignment of error is overruled.
By his next assignment of error, defendant argues that by arraigning him in chambers and not in open court, the trial court violated his constitutional right to an open and public trial under Article I, Section 18 of the North Carolina Constitution. Defendant acknowledges that this Court has rejected the per se rule that failure to conduct a formal arraignment on a capital charge constitutes reversible error. State v. Brown, 315 N.C. 40, 50, 337 S.E.2d 808, 817 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). Further, we hold that defendant has not been prejudiced by being arraigned in chambers, and thus we find no merit to this assignment of error.
Next, defendant contends that the trial Judge erred in holding an unrecorded conference without defendant's being present, in violation of his state and federal constitutional rights. Following defendant's arraignment in the Judge's chambers, the trial Judge stated, "All right. Take the defendant back out there[;] let me see counsel here just a minute." No recording was made of the subsequent conference outside the presence of defendant.
Under the North Carolina Constitution, a defendant in a capital case has an unwaiveable right to be present at every stage of his trial. State v. Buckner, 342 N.C. 198, 227, 464 S.E.2d 414, 430 (1995), cert. denied, ___ U.S. ___, 136 L. Ed. 2d 47 (1996). Further, under the United States Constitution, a defendant has a right to be present under the Confrontation Clause as well as a due process right to be present. Id.
However, "[n]ot every error caused by a defendant's absence requires reversal as these errors are subject to a harmless-error analysis." Id. at 227-28, 464 S.E.2d at 431. In Buckner we held that no error, constitutional or otherwise, existed when a conference took place prior to the commencement of defendant's trial. Id. at 228, 464 S.E.2d at 431. Since the record clearly indicates that the conference about which defendant complains took place prior to the start of his trial, we likewise find no merit to this assignment of error.
Defendant next argues that the trial court violated his constitutional rights by conducting ten bench conferences outside his presence. Defendant was present in the courtroom and represented by counsel at these conferences but, nevertheless, contends that his absence from the bench conference violated his constitutional rights to be present at every stage of the proceedings.
In State v. Speller, 345 N.C. 600, 481 S.E.2d 284 (1997), the trial court conducted ten unrecorded bench conferences with defense counsel and counsel for the State. Defendant was present in the courtroom but was not included in the conferences. This Court concluded that since (i) "defendant was in a position to observe the context of the conferences and to inquire of his attorneys as to the nature and substance of each one [and] . . . had a firsthand source as to what transpired," (ii) "defense counsel had the opportunity and obligation to raise for the record any matter to which defendant took exception," and (iii) defendant "failed to demonstrate that the bench conferences implicated his constitutional right to be present or that his presence would have substantially affected his opportunity to defend," the trial court "did not err in conducting the bench conferences with the attorneys out of the hearing of defendant." Id. at 605, 481 S.E.2d at 286-87; see also State v. Lee, 335 N.C. 244, 265, 439 S.E.2d 547, 557 (holding that defendant failed to meet his burden of showing how his absence from the conferences caused him prejudice), cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994).
In this case we note that of the ten bench conferences about which defendant complains, nine were recorded; and the transcript shows that eight of the recorded bench conferences concerned questions of law. In the remaining recorded conference, the trial court inquired of counsel how best to handle an incident where a reporter had talked to a juror. The only unrecorded conference occurred during voir dire of a prospective juror who was excused for cause because her views would prevent or substantially impair the performance of her duties as a juror. Defendant was present in the courtroom and was represented by counsel at each conference. Further, defendant gives no indication, and we cannot discern, how his presence would have served any useful purposes. For these reasons we hold that defendant has failed to meet his burden of showing how he was prejudiced by his absence from these conferences; therefore, this assignment of error is overruled.
By his next assignment of error, defendant contends that his right to be tried by a jury selected without regard to race was violated by the prosecutor's use of peremptory challenges. Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405 (1991).
Article I, Section 26 of the Constitution of North Carolina forbids the use of peremptory challenges for a racially discriminating purpose, State v. Williams, 339 N.C. 1, 15, 452 S.E.2d 245, 254 (1994), cert. denied, 516 U.S. 833, 133 L. Ed. 2d 61 (1995), as does the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 86, 90 L. Ed. 2d 69, 80 (1986).
In Batson the United States Supreme Court set out a three-pronged test to determine whether a prosecutor impermissibly excluded prospective jurors on the basis of their race. Hernandez, 500 U.S. at 358-59, 114 L. Ed. 2d at 405. First, a criminal defendant must establish a prima facie case that the peremptory challenge was exercised on the basis of race. Id. at 358, 114 L. Ed. 2d at 405. Second, once the prima facie case has been established by the defendant, the burden shifts to the State to articulate a race-neutral explanation for striking the juror in question. Id. at 358-59, 114 L. Ed. 2d at 405. The explanation must be clear and reasonably specific, but "`need not rise to the level justifying exercise of a challenge for cause.'" State v. Porter, 326 N.C. 489, 498, 391 S.E.2d 144, 151 (1990) (quoting Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88). Furthermore, "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360, 114 L. Ed 2d at 406; see also Purkett v. Elam, 514 U.S. 765, 768-69, 131 L. Ed. 2d 834, 839-40 (1995); State v. Barnes, 345 N.C. at 209-10, 481 S.E.2d at 57. This Court also permits the defendant at this point to introduce evidence that the State's explanations are merely a pretext. State v. Robinson, 330 N.C. 1, 16, 409 S.E.2d 288, 296 (1991).
Third, the trial court must determine whether the defendant has satisfied his burden of proving purposeful discrimination. Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405. The trial court's findings as to race neutrality and purposeful discrimination depend in large measure on the trial Judge's evaluation of credibility; hence, these findings should be given great deference. Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21. The trial court's determination will be upheld unless the appellate court is convinced that the trial court's decision is clearly erroneous. State v. Kandies, 342 N.C. 419, 434-35, 467 S.E.2d 67, 75, cert. denied, ___ U.S. ___, 136 L. Ed. 2d 167 (1996).
In this case the prosecutor gave reasons for the excusal of each juror defendant now challenges. Therefore, "we need not address the question of whether defendant met his initial burden of showing discrimination and may proceed as if a prima facie case had been established." State v. Harden, 344 N.C. 542, 557, 476 S.E.2d 658, 665 (1996), cert. denied, ___ U.S. ___, 137 L. Ed. 2d 483 (1997).
The prosecutor used seven of his peremptory challenges to remove black venire members. Defendant contends that the reasons given by the prosecutor were a pretext and that the trial court erred in finding no purposeful discrimination for the dismissal of four black, prospective jurors--Mr. Carmon, Mr. Morning, Mr. Williams, and Ms. Ossie Brown. We disagree. The prosecutor indicated that he excused Mr. Carmon for the reasons that Mr. Carmon was equivocal about the effect on his decision of a co-defendant testifying pursuant to a plea agreement, the prosecutor was unable to make eye contact with him, and the prosecutor detected a smile or smirk when talking to him.
Regarding Mr. Morning, the prosecutor gave as reasons for his removal that Mr. Morning was equivocal about the death penalty, that he was not paying attention when the prosecutor was going through the issues related to the death penalty, that the prosecutor was not able to make eye contact with him, and that a lead investigator who would be a witness in the case had informed the prosecutor that he had questioned Mr. Morning in a felonious larceny case under investigation.
As to Mr. Williams, the prosecutor stated that his answers concerning the death penalty were equivocal, that the prosecutor had been informed by a law enforcement officer who had known Mr. Williams for a number of years that one could not depend on what he said, and that Mr. Williams had been investigated as a suspect in a larceny case several years earlier. See State v. Glenn, 333 N.C. 296, 303, 425 S.E.2d 688, 693 ...