State v. Bonnett

• Decision Date: 09 July 1998
• Docket Number: No. 471A96.,471A96.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Shawn Derrick BONNETT a/k/a Tyrone Williams.

502 S.E.2d 563

348 N.C. 417

STATE of North Carolina v. Shawn Derrick BONNETT a/k/a Tyrone Williams.

No. 471A96.

Supreme Court of North Carolina.

July 9, 1998.

Michael F. Easley, Attorney General by Jeffrey P. Gray, Assistant Attorney General, for the State.

Rudolph A. Ashton, III, New Bern, for defendant-appellant.

PARKER, Justice.

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 codefendants, 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 codefendants 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.

PRETRIAL 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. ___, 118 S.Ct. 111, 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, 348 N.C. 169, 177, 500 S.E.2d 423, 428 (1998) (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. ___, 118 S.Ct. 196, 139 L.Ed.2d 134, and cert. denied, ___ U.S. ___, 118 S.Ct. 1309, 140 L.Ed.2d 473 (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 opinion and knew the victim, stated unequivocally that he could set his opinion 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 codefendants' trial was transferred on account of pervasive prejudice. However, codefendants' trial was subsequent to defendant's trial; and publicity from defendant's trial most likely created much of the prejudice against codefendants 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...