State v. Black

• Decision Date: 07 February 1991
• Docket Number: No. 568A88,568A88
• Parties: STATE of North Carolina v. Douglas Earl BLACK.
• Court: North Carolina Supreme Court

Page 398

400 S.E.2d 398

328 N.C. 191

STATE of North Carolina v. Douglas Earl BLACK.

No. 568A88.

Supreme Court of North Carolina.

Feb. 7, 1991.

Appeal of right by the defendant, pursuant to N.C.G.S. § 7A-27(a), from a judgment imposing a sentence of life imprisonment entered by Herring, J., on 26 July 1988, in Superior Court, Wake County. On 26 October 1989, the Supreme Court allowed the defendant's motion to bypass the Court of Appeals on his appeal from additional judgments imposing sentences of less than life imprisonment. Heard in the Supreme Court on 13 November 1990.

Lacy H. Thornburg, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., and Linda Anne Morris, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Staples Hughes, Asst. Appellate Defender, for defendant-appellant.

MITCHELL, Justice.

The defendant was tried upon proper bills of indictment charging him with first degree murder, armed robbery, conspiracy to commit armed robbery, and assault with a deadly weapon with intent to kill inflicting serious injury. He was tried in the manner prescribed for capital cases. The jury found the defendant guilty of first degree murder on a felony murder theory. The jury also found the defendant guilty of armed robbery, conspiracy to commit armed robbery, and assault with a deadly weapon inflicting serious injury. After a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of life imprisonment for the murder conviction. The trial court thereafter entered judgments imposing a sentence of life imprisonment for the murder conviction, a ten-year sentence for the conspiracy conviction and a ten-year sentence for the assault conviction. The trial court arrested judgment on the conviction for the armed robbery, as it formed the predicate felony for the first degree murder conviction under the felony murder theory.

The State's evidence tended to show that on 29 January 1985, two men entered Capital Variety and Video Store in Raleigh where they robbed and killed Roy Leonzia "Pete" Collins. Witnesses for the State testified that at approximately 8:00 p.m. on 29 January 1985, a total of seven people were in the store. A male employee, Gregory Council, was behind the counter. Collins, the owner of the store, was in a back office with his thirteen-year-old nephew. The door of the store flew open, and two men were standing in the doorway. One was a stocky black man wearing a green army jacket and carrying a pump-action shotgun. The second man was a thinner black man with a lighter complexion who was wearing a tan "London Fog-type" raincoat and holding a rifle. They yelled "freeze" and began shooting. Gregory Council felt something hit him in the side, and he spun around and fell to the floor. Shots were being fired by Collins from the office part of the store and by the two perpetrators from the front of the store. One of the perpetrators shouted to Collins to "put it down." Collins threw the gun in his hands to the floor.

The stocky man in the green army jacket came into the office and walked to within a few feet of Collins. He asked, "How you doing, Pete?" and fired one shot into Collins' abdomen. The perpetrators took a briefcase containing more than $30,000 in cash from Collins' hand. The man in the army jacket yelled, "Pick up the shells man. Pick up the shells." The man in the tan raincoat got down on the floor in the front part of the store and picked up shells before the two perpetrators left the store.

Collins died that evening from massive internal bleeding resulting from the gunshot wound to his abdomen. Council was required to undergo two operations to repair a punctured lung and other internal injuries resulting from the gunshot wound to his side.

James Cooley testified that he saw a black man in a tan "London Fog-type" coat and another man in a green army jacket whom he identified as Mack Lee Nichols heading in the direction of Collins' store immediately before Collins was killed.

Alvin Banks testified that the defendant and Nichols visited him on two occasions shortly before Collins was killed. On both occasions, the defendant was present when Nichols talked about a plan to rob and, if necessary, kill Pete Collins. The defendant and Nichols discussed using a shotgun during the course of a robbery. When the defendant said that he did not know how to use a shotgun, Nichols told him that he would show him.

Dani Gail Isom, the defendant's former girlfriend, testified that a week before the robbery, she purchased a shotgun for the defendant at his request. She also testified that the defendant had told her that he and Nichols had talked about robbing Collins. In addition, Isom testified that she and the defendant "cased" Collins' video store on two different occasions prior to the robbery and killing.

The State's evidence also tended to show that the defendant went to the home of Dwight Douglas Allen three hours after the robbery and murder of Collins. The defendant told Allen that he wanted to go to Rhode Island the next day, 30 January 1985. The defendant gave Allen three $100 bills and told him to rent a car for that purpose. The following day, the defendant and Allen drove to Providence, Rhode Island. While they were in Providence, Allen's girlfriend called to tell him about the murder of Pete Collins. When Allen asked the defendant if he had anything to do with Collins' murder, the defendant responded, "If I don't tell you nothing, you won't know nothing." When Allen returned to Raleigh, the defendant did not come with him.

Upon Allen's return to Raleigh, the police questioned him about the defendant. Allen gave the police four $50 bills that the defendant had given him. Three of the bills had writing on them and bore the odor of cologne. The writing on the bills was identified as Collins' writing by Jackie Humphries, Collins' bookkeeper. She also identified the cologne on the bills as the cologne that Collins put on each bundle of bills in his briefcase.

The defendant was arrested on 12 May 1987 in Florence, Kentucky, on a warrant for unlawful flight to avoid prosecution. Thereafter, he was returned to North Carolina for trial on the charges giving rise to this appeal.

The defendant offered no evidence at trial.

The defendant first assigns as error the trial court's failure to inquire into whether prospective jurors were prejudiced as a result of a statement by one prospective juror. After the first twelve prospective jurors were brought into the jury box, one of them, a Mr. McLean, was being questioned by the prosecutor. When asked if he would hold the State to its burden of proof, he said, "my wife and my child were assaulted by a black man with a deadly weapon." The remainder of his answer was cut off by an objection by the defendant's counsel. The other prospective jurors were then excused from the courtroom, while McLean remained for further questioning. He was then excused on the joint motion of the defendant and the prosecutor. Thereafter, the trial court denied the defendant's motion to dismiss all of the prospective jurors who had heard McLean's statement. In denying the motion the trial court concluded that "the statement was not sufficient to inflame or prejudice the entire panel or taint the panel so as to prevent them from being fair as prospective jurors." Five members of the jury that actually served and rendered verdicts in the defendant's trial were present when prospective juror McLean made the statement. The defendant's counsel did not request that the jury be questioned about the statement.

When there is substantial reason to fear that the jury has become aware of improper and prejudicial matters, the trial court must question the jury as to whether such exposure has occurred and, if so, whether the exposure was prejudicial. State v. Barts, 316 N.C. 666, 683, 343 S.E.2d 828, 839 (1986). The trial court "has the duty to supervise the examination of prospective jurors and to decide all questions relating to their competency." State v. Young, 287 N.C. 377, 387, 214 S.E.2d 763, 771 (1975). It also has broad discretion "to see that a competent, fair and impartial jury is impaneled and rulings in this regard will not be reversed absent a showing of abuse of discretion." State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979); accord State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980).

In the case sub judice, the prospective juror's statement did not give rise to a substantial reason to fear that the jury had been prejudiced. The prospective juror made no reference to any particular black male or to the defendant. All of the prospective jurors must have known that there are many black males in North Carolina and that some of them--like some members of all other racial groups--commit assaults. The mere fact that the prospective juror referred to an assault committed by a black male, combined with the fact that the defendant was a black male, did not present the trial court with any substantial reason to fear that other prospective jurors who heard the statement would be prejudiced against the defendant. If such was the case, it would be difficult or impossible to assemble a jury given the fact that most jurors have been exposed to information about crimes committed by members of all races in our society. Everyone is exposed to such information by reading newspapers, watching television, and through everyday life experiences. There simply is no merit to the defendant's contention that prospective juror McLean's statement, without more, required the trial court to conduct any special inquiry into possible jury prejudice. Our conclusion in this regard finds additional support in the fact that the defendant expressed satisfaction with each juror ultimately selected and the fact that the defendant did not exhaust the fourteen peremptory challenges permitted him under N.C.G.S. §...