State v. Cummings

• Decision Date: 06 October 2000
• Docket Number: No. 65A87-3.,65A87-3.
• Citation: 352 N.C. 600,536 S.E.2d 36
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jerry Ray CUMMINGS.

536 S.E.2d 36

352 N.C. 600

STATE of North Carolina v. Jerry Ray CUMMINGS.

No. 65A87-3.

Supreme Court of North Carolina.

October 6, 2000.

Michael F. Easley, Attorney General, by Tiare B. Smiley, Special Deputy Attorney General, and William B. Crumpler, Assistant Attorney General, for the State.

Sue A. Berry, Lumberton, for defendant-appellant.

LAKE, Justice.

Defendant was tried at the 19 January 1987 Special Session of Superior Court, Robeson County, and was convicted of murder in the first degree. Upon recommendation of the jury, defendant was sentenced to death. On appeal, this Court found no error. State v. Cummings, 323 N.C. 181, 372 S.E.2d 541 (1988). The Supreme Court of the United States granted defendant's petition for writ of certiorari and, on 19 March 1990, vacated the judgment and remanded the case to this Court for further consideration in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Cummings v. North Carolina, 494 U.S. 1021, 110 S.Ct. 1464, 108 L.Ed.2d 602 (1990). On remand, this Court found McKoy error in defendant's capital sentencing proceeding, vacated defendant's sentence of death and remanded for a new capital sentencing proceeding. State v. Cummings, 329 N.C. 249, 404 S.E.2d 849 (1991). The resentencing proceeding was held at the 20 October 1997 Criminal Session of Superior Court, Robeson County, and the sentencing jury again recommended a sentence of death. Accordingly, a sentence of death was again entered on 11 November 1997.

Defendant appeals to this Court as of right from the sentence of death. On appeal, defendant makes seventy-nine arguments, supported by seventy-nine assignments of error. We have carefully considered each of these arguments and conclude that defendant's capital resentencing proceeding was free of prejudicial error and that the death sentence is not disproportionate. We therefore uphold defendant's sentence of death.

The evidence supporting defendant's conviction for first-degree murder is summarized in this Court's prior opinion, Cummings, 323 N.C. 181, 372 S.E.2d 541. The basic facts are, as predicated upon an eyewitness account, that on the evening of 15 August 1986, defendant volunteered to kill the victim, Jesse Ward, because Ward and defendant's cousin, Grady Jacobs, had argued about a dog that Ward had sold to Jacobs. That same night, defendant shot and killed Ward in Ward's home. Additional evidence will not be repeated in this opinion except where necessary to discuss the issues now before us.

In his first two assignments of error, defendant contends he was prejudiced when the State engaged in prosecutorial misconduct by subpoenaing all of defendant's confidential prison records and by the disclosure of those records during cross-examination of witnesses. Under section 148-76 of our General Statutes, it is the duty of the Records Section of the State prison system to maintain the combined case records of criminals. N.C.G.S. § 148-76 (1999). The statute specifically provides that "[t]he information collected shall be classified, compared, and made available to law-enforcement agencies, courts, correctional agencies, or other officials requiring criminal identification, crime statistics, and other information respecting crimes and criminals." Id.

In the instant case, the State subpoenaed defendant's prison records, and those records were made available to the State pursuant to the statutory mandate of section 148-76. Clearly, the State did not engage in prosecutorial misconduct by following statutory procedure in obtaining prison records. Additionally, defense counsel did not object to the subpoena at trial; rather, counsel made a motion, which was granted, that defense counsel be given copies of all prison records received by the State.

As to defendant's contention that he was prejudiced by disclosure of the prison records in the State's cross-examination of defense witnesses, defendant provides no support for this contention. Notwithstanding his lack of specificity, we have reviewed the record and find that it does not reveal any inappropriate references by the State to defendant's prison records. We, therefore, find no error in the State's and trial court's adherence to the statutory mandate of section 148-76 and no evidence of prejudicial impact resulting from the release and review of defendant's records.

In his next assignment of error, defendant contends the trial court committed reversible error by excusing, outside of defendant's presence and in violation of his constitutional right to be present, several prospective jurors summoned for a special venire. Prior to defendant's case being called for trial, the trial judge stated for the record that he had previously been contacted by jurors with special problems seeking excusal from jury duty. The trial judge identified each prospective juror by name and gave the reason for each juror's excusal. The trial judge excused one juror because he was ninety-three years old and suffered from Alzheimer's, he excused one because he was a full-time student who had served as a juror in several civil cases during that session of court and he excused three because they were out of the state or country.

"`Defendant'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.'" State v. Hyde, 352 N.C. 37, 51, 530 S.E.2d 281, 291 (2000) (quoting State v. Workman, 344 N.C. 482, 498, 476 S.E.2d 301, 309-10 (1996)). The record in the present case reflects that prospective jurors with justifications for excusal from jury duty on the day defendant's case was called for trial were excused before the State called defendant's case. Accordingly, we conclude defendant had no right to be present during the preliminary qualification of these prospective jurors, and we overrule this assignment of error.

In his fourth assignment of error, defendant asserts constitutional error occurred during the voir dire of prospective jurors when the prosecutor used examples of aggravating circumstances which were not relied on in defendant's sentencing proceeding. The record reveals that when explaining "how death penalty sentencing works," the prosecutor provided examples of the eleven aggravating circumstances set out by the legislature in section 15A 2000(e) of our General Statutes, including killing a police officer, killing while committing armed robbery and killing for pecuniary gain. When he gave each example, the prosecutor stated clearly that the example of an aggravating circumstance being used did not apply to the case at hand and that it was "just an example."

Defendant did not object to the prosecutor's statements at trial and now asserts plain error. However, "we have previously decided that plain error analysis applies only to instructions to the jury and evidentiary matters." State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000); see also State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998),

cert. denied, 526 U.S. 1147, 119 S.Ct. 2025, 143 L.Ed.2d 1036 (1999). We have "`decline[d] to extend application of the plain error doctrine to situations in which the trial court has failed to give an instruction during jury voir dire which has not been requested.'" Greene, 351 N.C. at 566-67,

528 S.E.2d at 578 (quoting Atkins, 349 N.C. at 81,

505 S.E.2d at 109-10). We now likewise decline to extend application of the plain error doctrine to situations where a party has failed to object to statements made by the other party during jury voir dire. Defendant's failure to raise this issue during his trial constitutes waiver, pursuant to Rule 10(b)(2) of the Rules of Appellate Procedure. N.C.R.App.P. 10(b)(2).

Next, defendant contends the trial court erred in excusing prospective juror Inman for cause based on her opposition to the death penalty. We disagree.

In order to determine whether a prospective juror may be excused for cause because of that juror's views on capital punishment, the trial court must consider whether those 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, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)), quoted in State v. Morganherring, 350 N.C. 701, 724, 517 S.E.2d 622, 636 (1999),

cert. denied, ___ U.S. ____, 120 S.Ct. 1432, 146 L.Ed.2d 322 (2000). During voir dire, the following colloquy occurred:

THE COURT: Do you have any personal, moral, or religious beliefs either against the death penalty or against life imprisonment as an appropriate sentence for a person convicted of first-degree murder?

[PROSPECTIVE JUROR]: I don't believe in capital punishment.

....

[PROSECUTOR]: So is it—is it a correct statement to say that no evidence could get you to change your personal belief; is that correct?

[PROSPECTIVE JUROR]: I wouldn't want to. How should I say this? I don't think that I can give-say someone should be able to die, you know, in any shape or form.

[PROSECUTOR]: Okay. So that—that's a personal belief that you have?

[PROSPECTIVE JUROR]: Right.

[PROSECUTOR]: So, in other words, if part of your responsibility as a juror would be to come in here and sentence somebody to die, would you say that your ability to do that is impaired by your personal beliefs or would your personal beliefs even prevent you from being able to do that?

[PROSPECTIVE JUROR]: I think it would prevent me.

Based on prospective juror Inman's responses, the prosecutor moved for the juror's excusal for cause. Defense counsel did not object to the challenge for cause or follow up with additional questions for prospective juror Inman, and the trial court allowed the prosecutor's challenge.

Prospective jurors with reservations about...