State v. Billings

• Decision Date: 08 May 1998
• Docket Number: No. 216A96.,216A96.
• Citation: 348 N.C. 169,500 S.E.2d 423
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Archie Lee BILLINGS.

500 S.E.2d 423

348 N.C. 169

STATE of North Carolina v. Archie Lee BILLINGS.

No. 216A96.

Supreme Court of North Carolina.

May 8, 1998.

Michael F. Easley, Attorney General by Thomas S. Hicks, Special Deputy Attorney General, and Teresa L. Harris, Associate Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Marshall Dayan, Assistant Appellate Defender, Durham, for defendant-appellant. MITCHELL, Chief Justice.

On 12 September 1995, defendant was indicted for first-degree murder, first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, first-degree kidnapping, and first-degree rape. On 18 September 1995, defendant filed a motion for change of venue or, in the alternative, a special venire, which was denied by Judge W. Osmond Smith, III, after hearing at the 6 November 1995 Criminal Session of Superior Court, Caswell County. On 1 May 1996, defendant filed an amended motion for change of venue or, in the alternative, a special venire, which was denied after hearing by Judge J.B. Allen, Jr., at the 6 May 1996 Criminal Session of Superior Court, Caswell County.

Defendant was tried capitally at the 13 May 1996 Criminal Session of Superior Court, Caswell 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 first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, first-degree kidnapping, and first-degree rape. After a separate capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction. On 5 June 1996, the trial court sentenced defendant to death. Defendant appealed his conviction for first-degree murder and death sentence to this Court as of right. His motion to bypass the Court of Appeals as to his appeal of the remaining convictions, except the kidnapping, was allowed by this Court 2 June 1997.

The State's evidence tended to show inter alia that Robert Jackson left his Caswell County mobile home at 1:50 a.m. on 7 July 1995 to gather and ready a herd of cows for milking. Jackson left his two children, Bobby, thirteen years old, and Amy, eleven years old, asleep in their beds.

Sometime between 1:50 a.m. and 4:50 a.m., defendant entered the mobile home, stabbed Bobby repeatedly with a knife, and began his assault on Amy. Bobby struggled to a telephone in the kitchen and dialed 911. When emergency personnel arrived at 5:00 a.m., Bobby was found on the kitchen floor in a pool of his own blood. Defendant had stabbed the boy some twenty-three times. Bobby identified defendant as the man who stabbed him and whom he had seen carry his sister out of the mobile home. It was not until some twelve hours later that Amy's body was found in a field, with her pajama bottoms around her feet and her pajama top partially torn off. Amy had died from a stab to her throat that had severed her carotid artery. An autopsy revealed that Amy had also been sexually assaulted. Defendant worked with Jackson on the dairy farm, and both children knew him well. Defendant was arrested by sheriff's deputies on the dairy farm the same morning the children were attacked.

By his first assignment of error, defendant contends that the trial court erred in denying his pretrial motion to conduct a voir dire regarding the jury's perceptions about parole eligibility. This Court has consistently decided this issue contrary to defendant's contention. State v. Chandler, 342 N.C. 742, 467 S.E.2d 636, cert. denied, 516 U.S. 1060, 117 S.Ct. 196, 136 L.Ed.2d 133 (1996); State v. Powell, 340 N.C. 674, 459 S.E.2d 219 (1995), cert. denied, 516 U.S. 1060, 116 S.Ct. 739, 133 L.Ed.2d 688 (1996); State v. Price, 337 N.C. 756, 448 S.E.2d 827 (1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 224 (1995); State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 514 U.S. 1038, 115 S.Ct. 1405, 131 L.Ed.2d 292 (1995). As we explained in Payne, the United States Supreme Court's decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), does not affect our position on this issue when, as here, defendant would be eligible for parole if given a life sentence. Payne, 337 N.C. at 516-17, 448 S.E.2d at 99-100. We continue to adhere to our prior rulings on this issue. This assignment of error is overruled.

By another assignment of error, defendant contends that the trial court erred in denying his pretrial motions for change of venue or special venire and his renewals of those motions during jury selection. The trial court conducted pretrial hearings and denied the motions. The trial court indicated, however, that it would allow defendant to renew his motion and would reconsider the matter if it became apparent at any time that a fair and impartial jury could not be selected.

A defendant seeking a new trial on the basis of a trial court's denial of a motion for change of venue or special venire must ordinarily establish specific and identifiable prejudice against him as a result of pretrial publicity. As we have stated in numerous cases, for a defendant to meet his burden of showing that pretrial publicity prevented him from receiving a fair trial, he ordinarily must show 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. Barnes, 345 N.C. 184, 204, 481 S.E.2d 44, 54, cert. denied, ___ U.S. ___, 118 S.Ct. 196, 139 L.Ed.2d 134 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998); State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d 339, 347-48 (1983).

In this case, defendant did not exhaust his peremptory challenges before the twelve jurors who decided his case were seated; he used only ten of his fourteen peremptory challenges. As the jurors at issue in this case each stated unequivocally that they would be able to reach a verdict based solely upon the evidence presented at trial, defendant did not exhaust his peremptory challenges, and defendant has not offered particular objections to any individual juror, defendant has not shown any specific identifiable prejudice that necessitated a change of venue or special venire. Barnes, 345 N.C. at 205, 481 S.E.2d at 54.

Our examination of this issue in the present case, however, must go further. We indicated in State v. Jerrett that where the totality of the circumstances reveals that an entire county's population is "infected" with prejudice against a defendant, the defendant has fulfilled his burden of showing that he could not receive a fair trial in that county even though he has not shown specific identifiable prejudice. Jerrett, 309 N.C. at 258, 307 S.E.2d at 349. We based this conclusion on the United States Supreme Court's decision in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Sheppard involved "a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594 (1975). The Supreme Court stated in Sheppard that, while a defendant must ordinarily show specific prejudice, "`at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.'" Sheppard, 384 U.S. at 352, 86 S.Ct. at 1517, 16 L.Ed.2d at 614 (quoting Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543, 550 (1965)).

In Jerrett, this Court noted that "the crime occurred in a small, rural and closely-knit county where the entire county was, in effect, a neighborhood." Jerrett, 309 N.C. at 256,307 S.E.2d at 348. Alleghany County, where Jerrett was tried, had a population at that time of 9,587 people. Id. at 252 n. 1, 307 S.E.2d at 346 n. 1 (citing U.S. Census Report). The voir dire in Jerrett revealed that one-third of the prospective jurors knew the victim or some member of the victim's family, many jurors knew potential State's witnesses, four jurors who decided the case knew the victim's immediate family or other relatives, six jurors who decided the case knew State's witnesses, and the foreman stated that he had heard a victim's relative discussing the case in an emotional manner. Id. at 257, 307 S.E.2d at 348-49. The jury in Jerrett was examined collectively on voir dire rather than individually, thereby allowing prospective jurors to hear that other prospective jurors knew the victim and the victim's family, that some had already formed opinions in the case, and that some would be unable to give the defendant a fair trial. Id. at 257-58, 307 S.E.2d at 349. Additionally, in Jerrett, a deputy sheriff of the county, a magistrate of the county, and a private prosecutor retained by the victim's family and appearing as counsel for the State with the district attorney all expressed the opinion that it would be difficult if not impossible to select a jury in Alleghany County comprised of jurors who had not heard about, discussed, and formed opinions about the case. Id. at 252-54, 307 S.E.2d at 346-47. A majority of this Court concluded that based on the totality of the circumstances, there was a reasonable likelihood that Jerrett would not be able to receive a fair trial before a local jury. Id. at 258, 307 S.E.2d at 349.

Several factors distinguish the case sub judice from both Sheppard and Jerrett. With a population exceeding 20,000, North Carolina Manual 1995-1996, at 959 (Lisa A. Marcus ed.), Caswell County does not constitute a single small "neighborhood" like that at issue in Jerrett. Further, the population of the community from which the jury is to be drawn is not determinative and should not be the central focus when determining whether a change of venue is necessary. Se...