State v. Barnard

• Decision Date: 09 May 1997
• Docket Number: No. 237A96,237A96
• Citation: 484 S.E.2d 382,346 N.C. 95
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Brian Allen BARNARD

Page 382

484 S.E.2d 382

346 N.C. 95

STATE of North Carolina v. Brian Allen BARNARD

No. 237A96.

Supreme Court of North Carolina.

May 9, 1997.

Michael F. Easley, Attorney General by Joan Herre Erwin, Assistant Attorney General, for the State.

Durryl D. Taylor, Marshall, for defendant-appellant.

PARKER, Justice.

Defendant was tried capitally on an indictment charging him with the first-degree murder of Bruce Dixon Williams ("victim"). The jury returned a verdict finding defendant guilty of first-degree murder upon theories of (i) malice, premeditation, and deliberation and (ii) lying in wait. In accordance with the jury's recommendation after a capital sentencing proceeding, the trial court entered judgment sentencing defendant to life imprisonment. For the reasons discussed herein, we conclude that defendant's trial was free from prejudicial error and uphold his conviction and sentence.

On 15 November 1994 the victim was shot to death on a back road in Madison County, North Carolina. The State's evidence tended to show that on 14 November at approximately 7:30 p.m., Sterling Lee Dula, nicknamed "Jodie"; Shane Wilson; and the victim drove to the victim's mother's house. Jodie had with him his .25-caliber pistol. The group took some guns and jewelry belonging to the victim's stepfather. The weapons included shotguns, a pistol, and an assault rifle.

The group then went to the home of Bobby Duane Goforth ("Duane") to ask for his assistance in selling the weapons. After dropping Shane off, Duane, Jodie, and the victim drove to Asheville, North Carolina. At approximately 11:00 p.m. they went into a game room and met defendant, nicknamed "Sniper," and several other people. Duane knew defendant and knew that he and the others were members of the "Crip Rolling 60's gang."

The victim, Duane, defendant, and others went to an apartment complex to sell the weapons. Some time after the group entered an apartment to show the guns, there was a knock at the door; everyone picked up guns and went outside. A person identified as "Don" allegedly picked up the assault weapon and stole it. The other guns were put in the trunk of Jodie's car.

Duane and defendant said that they were going to get the assault weapon back from Don. Duane borrowed Jodie's .25-caliber pistol, and defendant borrowed the .25-caliber pistol taken from the victim's stepfather. While Duane and defendant supposedly looked for the thief, Jodie and the victim went to another apartment and sold one of the stolen shotguns.

Defendant asked Duane if he wanted to rob Jodie and the victim. Defendant explained to Duane that if defendant killed one of them, he would obtain the gang ranking of "OG," which stands for "original gangster." Duane protested, and defendant stated, "let's just rob them then cause we'll get these guns." Defendant told Duane to get the men to a place where defendant could get the guns from them.

The victim and Jodie returned to the apartment complex where they had earlier left defendant and Duane. Defendant and Duane gave the borrowed weapons back. Defendant told Jodie and the victim that he knew where the thief, Don, "hid out." Defendant, Duane, Jodie, the victim, and two other men then got into Jodie's car and headed toward Madison County. Duane told Jodie where to drive. Someone told Jodie to pull the car over so they could smoke some marijuana, and everyone got out of the car. Jodie then went back and sat in the front seat of the car.

The victim began shooting his gun into the woods. Defendant walked over to the car window and asked Jodie for his .25-caliber pistol. After getting the pistol from Jodie, defendant walked behind the victim, pointed the gun at the victim's head, and pulled the trigger. Defendant was about three feet from the victim when he shot him. Jodie jumped out of the car, and defendant then pointed the gun at Jodie. The gun jammed, and Jodie was able to run back to the car and drive away.

Defendant presented evidence suggesting that Jodie shot the victim.

Defendant first contends the trial court erred in denying his motion for individual voir dire and sequestration of jurors during voir dire. Defendant is black, and the victim was white. Defendant maintains that individual voir dire was necessary to explore the sensitive issues of bias and racial prejudice as well as to prohibit the education of prospective jurors as to the method of questioning employed by counsel on these sensitive issues.

Whether to grant individual voir dire of prospective jurors rests in the sound discretion of the trial court, and this ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Sexton, 336 N.C. 321, 349, 444 S.E.2d 879, 895, cert. denied, 513 U.S. 1006, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994). Defendant has offered no convincing reason explaining how the denial of his motion may have harmed him. Defendant concedes that his arguments are similar to those in cases in which we have consistently denied relief on this basis. See, e.g., State v. Conaway, 339 N.C. 487, 453 S.E.2d 824, cert. denied, --- U.S. ----, 116 S.Ct. 223, 133 L.Ed.2d 153 (1995); State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987); State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985). After careful consideration, we decline to depart from our prior holdings on this issue and overrule this assignment of error.

Defendant next argues that the trial court erred by denying his motion challenging the jury panel. Prior to defendant's trial, defense counsel learned that Sheriff James D. Brown possessed a list of some of the jurors drawn for the 16 October 1995 session. The list contained names, addresses, phone numbers, and other information on prospective jurors who had not been served with a summons for jury duty or who had not made a proper return of his or her summons. Apparently the list was being used to contact prospective jurors to determine if they intended to be at the hearing of this matter. Defendant contends that the list did not include every person who was not served or who had not responded to his or her summons and that prospective jurors were being systematically excluded.

N.C.G.S. § 9-10 requires the register of deeds, within three days after receipt of the numbers drawn for jury duty, to deliver the list of prospective jurors to the sheriff, who shall summon the persons named for jury duty. In the present case the clerk's office assisted the sheriff by mailing the summons to the prospective jurors. Close to the time of this trial, many of the people summoned had not sent back a notification of service.

On 11 October 1995 defense counsel filed a motion to continue on the basis that there might be insufficient prospective jurors for purposes of selecting an entire panel and alternates. The clerk's office and the Sheriff's Department attempted to contact some of the prospective jurors who had not returned their notification of service to find out if they had received service and, if not, to effect service. Prospective jurors Earl Wise and Yvonne Briggs and the brother of prospective juror Jason Murray were contacted by Sheriff Brown. Mr. Wise ultimately served as a juror in this case. Sheriff Brown as well as Chief Deputy Dal Peek testified at defendant's trial.

Defendant makes two arguments regarding the jury selection in this case. Defendant first argues that preparing and using a list selecting some prospective jurors to contact to assure their attendance and excluding others "raises a suspicion of impropriety." Defendant also argues that a personal telephone call from the sheriff, who is a prosecution witness, to assure the appearance of prospective jurors, is "unconstitutional, improper, and unethical."

After a pretrial hearing on this matter, Judge Downs found that "no evidence exists in support of any of the allegations made pursuant to this motion that leads the Court to the conclusion that there was any impropriety in the selection or the drawing of the jury according to the law and, further, that any juror was included or excluded from service systematically."

We conclude that the record supports the trial court's finding. In response to a motion to continue filed by defense counsel, the clerk's office and the Sheriff's Department attempted to contact prospective jurors who had not returned their notification of service to find out if they had received service and, if not, to effect service. These individuals were asked if they had received their summons and if they intended to appear in court. These facts do not, in our view, create the potential for suspicion of impropriety in the jury-selection process.

The remaining issue is whether the pretrial contact by Sheriff Brown with prospective jurors was prejudicial to defendant. A sheriff is not disqualified from summoning supplemental jurors because he or a member of the sheriff's office is testifying in the case. N.C.G.S. § 9-11(a) provides:

If necessary, the court may, without using the jury list, order the sheriff to summon from day to day additional jurors to supplement the original venire. Jurors so summoned shall have the same qualifications and be subject to the same challenges as jurors selected for the regular jury list. If the presiding judge finds that service of summons by the sheriff is not suitable because of his direct or indirect interest in the action to be tried, the judge may appoint some suitable person in place of the sheriff to summon supplemental jurors. The clerk of superior court shall furnish the register of deeds the names of those additional jurors who are so summoned and who report for jury service.

N.C.G.S. § 9-11(a) (1986). In State v. Yancey, 58 N.C.App. 52, 60, 293 S.E.2d 298, 303 (1982), the Court of Appeals held that testimony by a person in the sheriff's office does not disqualify the sheriff from summoning supplemental jurors to hear the matter. The Court of Appeals stated: "Deputy sheriffs testify in many ...