State v. Brown
| Decision Date | 07 July 1987 |
| Docket Number | No. 65A85,65A85 |
| Citation | 358 S.E.2d 1,320 N.C. 179 |
| Parties | STATE of North Carolina v. Thomas Jack BROWN. |
| Court | North Carolina Supreme Court |
Lacy H. Thornburg, Atty. Gen. by David Roy Blackwell, Asst. Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant-appellant.
This is a case of murder perpetrated by lying in wait. See N.C.G.S. 14-17 (1986). The victim, Wayne Gerald, who had been working at his desk at home the evening of 5 May 1984, was killed by a single shotgun blast fired through the window beside him. He died instantaneously.
In pertinent part, the evidence at trial showed the following:
Around five o'clock the afternoon of 5 May 1984 defendant's brother Ray Brown and his friend Gary Presnell dropped by defendant's house. The three drank beer, played with defendant's children, and chatted. Presnell testified that defendant suddenly ran into the house, brought out a twelve-gauge shotgun, and urged his brother and Presnell to shoot it. The brother deferred, but Presnell shot the gun once into the air. Defendant returned the gun to the house and conversation resumed, eventually turning to the subject of defendant's missing moped. Defendant said he suspected Wayne Gerald had it and that he would "get him one way or another." Defendant The three continued to converse and drink beer, and the subject of the moped and Gerald's name came up repeatedly. At one point defendant jumped up, asked his companions if they would give him a ride, went in the house, and returned with the shotgun.
told Presnell that Gerald had pistol-whipped him once, and he showed Presnell the scars.
Presnell drove. Defendant asked him to go by Gerald's house and remarked that the lights were on and that Gerald was in his office. Presnell then drove to defendant's mother's house nearby, separated from Gerald's house by a rental house and a storage shed. The three got out and eventually walked to the backyard of defendant's mother's house. Presnell heard defendant's brother tell defendant that he "shouldn't do it" and heard defendant reply, A fourth friend joined the group and all but defendant then walked to the front of the house. They heard a shot, and defendant's brother said, "He's killed him."
Defendant's mother-in-law testified that the evening of 5 May defendant came to her trailer and told her "he had just killed the son-of-a-bitch," and he showed her with his hands how he had shot the gun. He then laughed and asked her to take him home. On the ride back to defendant's house, he laughed again and said, "The son-of-a-bitch won't beat me no more." Once home, defendant repeated to his wife and later to his sister and brother-in-law that he had killed "the son-of-a-bitch," both times within his mother-in-law's earshot. Defendant also said he had disposed of the gun in the ditch behind the mailboxes near the mother-in-law's trailer.
Defendant's brother-in-law testified that he and his wife had just picked up his seventeen-year-old sister Angela from defendant's house the night of 5 May when defendant stopped him, bent down beside the car window, and
asked me if I could keep a secret, and I told him yeah, and he said he killed the son-of-a-bitch, and I paused a minute and I said who, and he said Wayne Gerald, and he said that he had beat him and he pointed to his head, and he said "He won't beat me no more," and I told him that I said, you know, "The law is going to get you." He said, "No one will find out," and then he told me how he done it. He went up to the window..... [T]ook the shotgun, he said, like this.... He said that Wayne Gerald looked over or something, he said he shot him right there [indicating the left eye].... He said that he then run through the woods and hid the gun in a ditch, in water. And he said no one would ever find out.
Angela testified that she was on the porch at defendant's house waiting for her mother and stepfather to pick her up when defendant was dropped off by his mother-in-law. She testified that defendant demonstrated to her how he shot Gerald, saying "he snuck up to Wayne Gerald's house and he looked through the window and he said he had the gun like this, and he waited for Wayne Gerald to bend over ... and he let it go, and he went 'boom'...." Angela also testified that defendant told her he had thrown the gun in some water in a ditch. She walked with defendant and his wife to a nearby graveyard where defendant took an empty shotgun shell from his pocket and discarded it. Several times he repeated, laughing, that he had killed the "son-of-a-bitch" and that he had blown his brains out.
Medical testimony established that Gerald died instantaneously of a gunshot wound to the head. He had "multiple penetrating wounds on the left side of the face and head; and multiple scalp lacerations and skull fractures of the head, with actual brain tissue protruding from some of those lacerations and fractures." There was "severe damage to the brain."
The jury found defendant guilty of first degree murder and recommended that he be sentenced to death. The trial court entered judgment accordingly.
Defendant first contends that the voir dire examination of a prospective juror Although defendant objected once to the leading form of one question during the voir dire, he neither objected to the line of questioning nor requested an individual voir dire. Further, he did not challenge any jurors for cause on this account, and he failed to exhaust his peremptory challenges. When a defendant challenges a juror for cause but fails to exhaust his peremptory challenges, he has waived his right to appeal the refusal of that challenge for cause. N.C.G.S. 15A-1214(h)(1) (1983). See State v. Johnson, 317 N.C. 417, 431-33, 347 S.E.2d 7, 16-17 (1986). When, as here, a defendant does not even attempt to challenge jurors whose impartiality he questions, logic compels a similar presumption of waiver. State v. Rorie, 258 N.C. 162, 165, 128 S.E.2d 229, 231 (1962).
who was ultimately excused for cause prejudiced the two jurors in whose presence the voir dire was conducted. The examination elicited the information that the prospective juror was already acquainted with defendant from their having been together at a prison camp. The prospective juror was asked whether defendant was at the camp before he arrived and after he left. Defendant argues that the prospective juror's affirmative answers were evidence of defendant's bad character deliberately and prejudicially placed before the jury, and that it was error for the trial court not to intervene ex mero motu.
In addition, Rule 10(b)(1) of the Rules of Appellate Procedure requires that any exception urged on appeal must be preceded "by objection noted" unless "by rule or law [the objection] was deemed preserved or taken without such action." See, e.g., State v. Oliver, 309 N.C. 326, 334, 307 S.E.2d 304, 312 (1983). Absent objection, either noted or deemed taken by rule or law, review will be limited to those errors
in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental " error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
Id. at 335-36, 307 S.E.2d at 312, quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). See also N.C.G.S. 15A-1446 (1983). It is unlikely that any prejudice colored the deliberations of these two jurors or that the deliberations of other jurors might have been infected by this testimony. The weight and abundance of evidence of defendant's guilt, and the negligible probability of prejudice resulting from the voir dire, do not qualify this as the "exceptional case" in which the error, if any, had a probable impact upon the jury's verdict.
Defendant asserts it was also error for the trial court to excuse a prospective juror for cause based upon her statements that she had "mixed feelings" about the death penalty. The prospective juror was initially asked if she "could and would vote to impose" the death penalty if the State were to satisfy her beyond a reasonable doubt that it was the appropriate penalty in this case. Defendant's objection to the question was sustained, and the question was rephrased:
Mr. Britt: Okay. Let me ask you this: If you are selected to sit on this jury, and if the State satisfies you, and satisfies you beyond a reasonable doubt, that the defendant ... is guilty of exactly what he's charged with, would you vote to find him guilty?
Juror Number 2: I don't know.
Mr. Britt: Let me ask the question again: If the State satisfies you and satisfies you beyond a reasonable doubt that the defendant ... is guilty of murder in the first degree ... would you vote to find him guilty?
Juror Number 2: Well, like I said, I have mixed feelings about it.
Mr. Britt: I understand.
Juror Number 2: I don't know if I could.
Mr. Britt: You are saying, then, that you might not be able to find him guilty?
Juror Number 2: I might not.
Mr. Britt: Under no circumstances?
Mr. Britt: So, what you are...
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