State v. Buchanan, No. 317A89

• Decision Date: 06 December 1991
• Docket Number: No. 317A89
• Citation: 410 S.E.2d 832,330 N.C. 202
• Parties: STATE of North Carolina v. Lenwood Earl BUCHANAN.
• Court: North Carolina Supreme Court

Page 832

410 S.E.2d 832

330 N.C. 202

STATE of North Carolina v. Lenwood Earl BUCHANAN.

No. 317A89.

Supreme Court of North Carolina.

Dec. 6, 1991.

Appeal of right by defendant pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Allen (J.B.), J., at the 10 July 1989 Criminal Session of Superior Court, Wake County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 15 October 1991.

Lacy H. Thornburg, Atty. Gen. by Ralf F. Haskell, Sp. Deputy Atty. Gen., Raleigh, for State.

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

WHICHARD, Justice.

Defendant was tried on indictments charging robbery with a dangerous weapon and the first-degree murder of Jerry Coombs. The jury convicted defendant of robbery with a dangerous weapon and first-degree felony murder based on the underlying robbery, but rejected the theory of murder by premeditation and deliberation. Because the robbery was the felony underlying the felony murder conviction, the trial court arrested judgment on the robbery conviction. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death. For the reasons discussed herein, we find no prejudicial error in the guilt phase of defendant's trial, but we conclude that defendant must receive a new sentencing proceeding.

The State presented the following evidence tending to show that defendant killed Jerry Coombs while robbing him in the parking lot of the Crabtree Boulevard Fast Fare in the early morning hours of 10 June 1988:

Melinda Coombs, the victim's wife, testified that she and her husband lived in Raleigh with their three children. In order to supplement their regular incomes, the couple acquired a daily newspaper route that required early morning deliveries to businesses along Route 1, including the Crabtree Fast Fare. Jerry Coombs made the deliveries, and Melinda handled the billing.

Melinda testified that Jerry left their house between 3:15 and 3:30 a.m. on Friday, 10 June 1988. Upon his failure to return home at the usual time, 5:30 a.m., Melinda began calling businesses along the route to determine whether Jerry had yet made deliveries. The last completed delivery was to the Crabtree Fast Fare.

Darryl Hatter, a Raleigh drywall subcontractor, testified that he stopped at the Crabtree Fast Fare at about 7:00 a.m. on 10 June 1988. After getting out of his car, Hatter noticed a man in a nearby car reclining in an awkward position. Hatter passed by the car and discovered that the man was not breathing and that there was a blood stain where the man's hand rested near his midsection. Hatter went in the store and informed the manager, who then called the police.

The police investigation of the crime scene revealed two empty .25 caliber shell casings and an unfired shell inside the victim's car, an empty shell casing near the right front tire of the car, and a footprint impression in some nearby mud. The police also extracted a .25 caliber bullet from a bullet hole in the passenger-side door of the car. A trace evidence examination of the victim and his car produced orange-colored fibers that could have originated from the same source as fibers taken from the carpet in defendant's apartment, particles of grey foam rubber that could have originated from the same source as particles recovered from a blue running suit found in defendant's apartment, and a single hair originating from the head of a black individual (defendant is black).

Dr. Copeland's autopsy of the victim revealed two bullet wounds, one to the right knee and the other to the abdomen. The victim died as a result of bleeding from the aorta.

Anthony "Mingo" Gregg, defendant's neighbor in an apartment building at 425 Alston Street, testified that defendant said he was going to rob a man who had money bags. Defendant asked Gregg to go with him and "watch out" while defendant snatched the bags. The two men later asked Billy Cole to act as their driver.

Gregg testified that two days before the killing the three men went to the Crabtree Fast Fare to do the robbery, but that the intended victim left too quickly. The next day, defendant showed Gregg a small black gun and told him he would use it to shoot the man in the leg if he resisted the robbery. One day later, 10 June 1988, defendant knocked on Gregg's door at about 3:30 or 4:00 a.m., saying it was time to go. The two men met Cole and drove to a spot across from the Fast Fare. Defendant and Gregg walked across the street and waited beside the dumpster near the store.

Gregg testified that when they saw the victim get out of his car, defendant put a stocking over his head, pulled out the gun, and said he was going to shoot the victim in the leg so he could not chase them. Gregg testified that when defendant pulled out the gun, he (Gregg) started leaving the scene because he and Billy Cole did not want to be involved with the gun. As Gregg was walking away he heard defendant say: "Hold it, you know what it is." Gregg then heard two gunshots. He turned and saw defendant struggling with the victim through the open car window. Gregg ran back to the victim's car and told defendant it was time to leave. Gregg testified that he heard defendant say the money was underneath the victim and he wanted it. Gregg turned again to leave and then he heard another shot when he was about halfway back to the car.

Soon both men were back at Cole's car. Defendant said he thought he had killed the man and he had gotten only the victim's wallet, which contained ten dollars and some credit cards. The men drove back to the Alston Street apartments.

Gregg told his girlfriend and his brother that defendant shot a man at the convenience store. Gregg was arrested the next week, and he gave a statement to the police. Gregg's sneakers matched the footprints left in the mud near the victim's car. Gregg pled guilty to the second-degree murder and robbery of Jerry Coombs.

Alvin Edwards, a resident of the apartment house on Alston Street, testified that defendant had spoken to him prior to the robbery about his plan to commit the crime. Edwards also testified that "Mingo" Gregg told him they had committed the robbery and defendant had shot the victim.

Michelle McMickings, Gregg's girlfriend, testified that Gregg told her after the robbery that defendant had shot a man during the robbery. Crystal Freeman, defendant's girlfriend, testified that defendant awoke her in the early morning of 10 June 1988 and told her he thought he had killed someone. She testified that when she discovered she was missing a pair of stockings, defendant told her he had taken them.

Michael Gause testified that defendant offered to sell him a .25 caliber automatic pistol.

Defendant offered no evidence at the guilt phase of the trial, but defendant's sister, Amy Ross, testified in his behalf at the sentencing phase. Ross testified about her parents' divorce when defendant was very young. She also described defendant's educational background, work experience, and religious practices.

In his first assignment of error, defendant contends that his federal and state constitutional rights to the assistance of counsel during a critical stage of his trial were violated when the trial court and defendant's attorneys allowed him to make the decision not to exercise peremptory challenges to remove jurors his attorneys deemed unsuitable. With respect to the jury selection process, the stipulated record on appeal reveals the following:

During jury selection, defense counsel communicated to the defendant counsel's advice on whether or not each ... venireperson passed by the state should be seated on the jury. Counsel vested in the defendant the final decision of whether to accept or peremptorily challenge each venireperson passed by the state. In each instance in which a peremptory challenge was exercised by the defense, counsel and the defendant concurred in the decision. In four instances ... the defendant, against the advice of counsel, made the decision to accept venirepersons as seated jurors; but for counsel's conviction that the decision of who should be seated on the jury should be the capital defendant's, counsel would otherwise have peremptorily excused these four jurors.

We have rejected defendant's contention in the recent cases of State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991), and State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991). In McDowell, the Court found no violation of defendant's right to counsel where the record revealed that "counsel and defendant were not in conflict as to whether to pass or strike these jurors, but simply that defense counsel gave deference to his client's wishes." Id. at 380, 407 S.E.2d at 210. The Court held that "the trial court did not err in permitting defendant to give input into the voir dire decision-making process and that defendant was not denied effective assistance of counsel." Id. at 382, 407 S.E.2d at 210.

The Court in McDowell relied on the contemporaneous case of Ali, 329 N.C. 394, 407 S.E.2d 183. In Ali, the defendant claimed that "the trial court denied him his right to assistance of counsel by allowing him, rather than his lawyers, to make the final decision regarding whether Terrell would be seated as a juror." Id. at 402, 407 S.E.2d at 189. The Court concluded that "when counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the client's wishes must control...." Id. at 404, 407 S.E.2d at 189. The Court also noted that "defense counsel should make a record of the circumstances, her advice to the defendant, the reasons for the advice, the defendant's decision and the conclusion reached." Id.

The record here reveals that defendant and his counsel conferred regarding which venirepersons to excuse and that...