State v. Call

• Decision Date: 31 December 1998
• Docket Number: No. 341A96.,341A96.
• Citation: 508 S.E.2d 496
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Eric Lawrence CALL.

508 S.E.2d 496

STATE of North Carolina v. Eric Lawrence CALL.

No. 341A96.

Supreme Court of North Carolina.

December 31, 1998.

Michael F. Easley, Attorney General by Gail E. Weis, Assistant Attorney General, for the State.

Barry J. Fisher, Saratoga Springs, NY, for defendant-appellant.

MITCHELL, Chief Justice.

On 9 October 1995, defendant was indicted for first-degree murder. On 18 March 1996, he was also indicted for robbery with a dangerous weapon, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was tried capitally at the 15 July 1996 Criminal Session of Superior Court, Ashe 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 robbery with a dangerous weapon, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. Following a separate capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction. On 23 July 1996, the trial court sentenced defendant to death. The trial court also sentenced defendant to a concurrent sentence of sixty-three to eighty-five months imprisonment for the kidnapping conviction and to consecutive sentences of fifty-five to seventy-five months imprisonment for the robbery conviction and twenty-five to thirty-nine months imprisonment for the assault conviction. Defendant appealed his conviction for first-degree murder and death sentence to this Court as of right. On 2 September 1997, this Court allowed defendant's motion to bypass the Court of Appeals as to his appeal of the remaining convictions.

On 15 May 1997, defendant filed a petition for writ of certiorari in this Court seeking review of the trial court's order denying his request to supplement the trial transcript with the instructions given to newly selected grand jurors by the trial court. This Court entered an order on 23 July 1997 denying defendant's petition. On 25 August 1997, defendant filed a motion for reconsideration of his first petition, as well as a second petition for writ of certiorari seeking review of the trial court's order settling the record on appeal. On 9 October 1997, this Court entered an order dismissing defendant's motion for reconsideration of his first petition for writ of certiorari, but allowing his second petition for the limited purpose of expanding the record on appeal to include the statements of Gabriel Gervacio, Alan Varden, and Virginia Call.

The State's evidence tended to show, inter alia, that around 9:30 p.m. on 24 August 1995, defendant offered the victim, Macedonio Hernandez Gervacio,¹ $25.00 to help him move some things. Macedonio left the trailer he shared with his nephew, Gabriel Gervacio, and went with defendant. Defendant took Macedonio to a nearby cornfield with the intention of robbing him. While there, defendant beat Macedonio to death with a shovel handle and a tire iron, tied his right foot up around his head, and tied his hands behind his back. Later that same evening, defendant lured Gabriel Gervacio using the same ruse to the same cornfield to kill him because Gabriel could place defendant with the victim. Defendant struck Gabriel in the head with a baseball bat, but was unable to subdue him. Gabriel escaped into the cornfield, where he hid all night. The next morning, Gabriel showed up at the house of Mrs. Clyde Reeves seeking assistance. Eventually, law enforcement officials were called in, and an investigation uncovered Macedonio's body.

In the weeks prior to 24 August, defendant discussed robbing Macedonio with his friend Alan Varden in an effort to recruit Varden's help. After killing Macedonio, defendant again made an attempt to obtain Varden's assistance, this time in murdering Gabriel. Although he refused to help defendant commit either crime, the baseball bat defendant used to assault Gabriel belonged to Varden. Following the assault of Gabriel, defendant returned home; told his wife, Virginia "Jennie" Call, and Varden what had happened; and packed some clothes. The three of them then went to Varden's trailer, where defendant shaved off his beard and mustache. Defendant told his wife and Varden that he was going to Monroe or Charlotte. He also returned the bat to Varden, who wiped it off. Subsequently, defendant checked into the Knight's Inn Motel in Monroe, under the name "Richard Finley," where he was later arrested.

PRETRIAL AND JURY-SELECTION PHASE

By an assignment of error, defendant contends that the trial court erred by allowing only one of his two attorneys to participate in voir dire. We find no error. The trial court may properly allow only one of a capital defendant's attorneys to question jurors during voir dire where the court does not preclude the attorneys from consulting or communicating with one another. State v. Fullwood, 343 N.C. 725, 472 S.E.2d 883 (1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1260, 137 L.Ed.2d 339 (1997). In this case, the record reveals that defendant's attorneys were free to confer with one another, and the only limitation placed upon his second counsel was in the actual questioning of the prospective jurors. Furthermore, defendant does not argue, and the record fails to show, that the trial court's ruling compelled defendant to accept any juror to which he had valid objections.

By this same assignment of error, defendant argues that the trial court imposed unreasonable procedural requirements upon defense counsel throughout the trial. Defendant first complains about the jury-selection process. The trial court proposed that prospective jurors be called two at a time to the box during voir dire to speed up the selection process. Defendant agreed to this procedure, and this method was used to pick the jury that heard his case. After the twelfth juror was seated, there was one remaining juror in the box. Defendant contends that the trial court improperly required defense counsel to question and determine whether to challenge this remaining juror—the first prospective alternate juror—without putting a second juror in the box. This contention is without merit.

This Court has consistently held that the trial court has broad discretion to regulate jury voir dire. State v. Fletcher, 348 N.C. 292, 500 S.E.2d 668 (1998)

. In order to establish reversible error, defendant must show that the trial court abused its discretion and that defendant was prejudiced thereby. Id. In this case, defendant expressed satisfaction with the juror about whom he now complains, as this juror became the first alternate juror. Furthermore, this particular juror, as an alternate, did not deliberate either defendant's guilt or his sentence. Thus, defendant cannot show prejudice.

Defendant further contends that it was error for the trial court to impose a five-minute time limit on opening statements at the guilt-innocence phase and to forbid any opening statement whatsoever at defendant's separate capital sentencing proceeding. In addition, defendant complains that the trial court did not provide adequate time to review Gabriel's statement prior to cross-examination. These contentions are also without merit.

Control over opening statements rests within the sound discretion of the trial court. State v. Speller, 345 N.C. 600, 481 S.E.2d 284 (1997). Similarly, whenever a witness statement is delivered to a defendant as provided by the rules of discovery, the trial court may, upon request of the defendant, "recess proceedings in the trial for a period of time that it determines is reasonably required for the examination of the statement by the defendant and his preparation for its use in the trial." N.C.G.S. § 15A-903(f)(3) (1997). Here, defendant does not argue, and the record fails to show, any abuse of discretion in either ruling by the trial court. Finally, defendant fails to cite, and we do not find, any authority that he is entitled to an additional opening statement during the sentencing phase. For the foregoing reasons, this assignment of error is overruled.

By another assignment of error, defendant contends that the trial court erred by conducting numerous bench conferences and pretrial proceedings off the record and without his presence, sometimes to the exclusion of defense counsel. Specifically, defendant complains of bench conferences which were held outside his presence prior to the trial court's ruling upon, among other things, a pretrial Rule 24 motion, defendant's motion for appointment of additional counsel, the admissibility of Gabriel's interpreted testimony, and corrections and additions to the capital sentencing Issues and Recommendation form.

Even though the Confrontation Clause in Article I, Section 23 of the North Carolina Constitution guarantees a criminal defendant the right to be present in person at every stage of his capital trial, this right does not arise prior to the commencement of trial. State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 116 S.Ct. 2560, 135 L.Ed.2d 1077 (1996). A Rule 24 conference, which takes place prior to the selection and swearing-in of the jury panel, is not a stage of the trial. Id. We note that the record shows defendant was present in the courtroom for the entire Rule 24 conference. Moreover, the burden is on defendant to establish that his presence at the unrecorded bench conferences would have been useful, which he has failed to show. Speller, 345 N.C. 600, 481 S.E.2d 284.

Similarly, defendant can show no violation of his constitutional rights based upon the hearing on his motion to appoint second counsel. The record shows defendant was present for the entire hearing, which was recorded. Moreover, second counsel was ultimately appointed, even though defendant was already represented by retained counsel. Defendant has not demonstrated that the unrecorded bench...