State v. Chamberlain

• Decision Date: 07 December 1982
• Docket Number: No. 135A81,135A81
• Citation: 307 N.C. 130,297 S.E.2d 540
• Parties: STATE of North Carolina v. Timothy Rogers CHAMBERLAIN.
• Court: North Carolina Supreme Court

Page 540

297 S.E.2d 540

307 N.C. 130

STATE of North Carolina v. Timothy Rogers CHAMBERLAIN.

No. 135A81.

Supreme Court of North Carolina.

Dec. 7, 1982.

Rufus L. Edmisten, Atty. Gen. by Guy A. Hamlin, Asst. Atty. Gen., Raleigh, for the state.

William D. Spence, Kinston, for defendant-appellant.

EXUM, Justice.

In this appeal defendant's assignments of error relate to the trial court's failure to grant his motion to suppress his pretrial confession, the denial of his motions to dismiss the charge, and the court's instructions to the jury. We find no reversible error in the trial; therefore, we affirm the judgment.

The state's evidence tends to show the following:

On 24 February 1981, the victim, Wilbert Grady, was eighty-three years old and lived in a house with his son, Isom Grady, near LaGrange, North Carolina. When Isom went to work around 7:30 that morning, he left his father sitting near a heater. When Isom returned from work around 4:45 p.m., he found his father sitting on the floor in the sitting room, leaning against a wall near the heater. Although the victim was alive when Isom found him, he was unable to speak; he had a gash about an inch long on his forehead and blood on his T-shirt. A fire brick, not there when he went to work, was lying near his father when Isom returned. Isom observed that the house had been ransacked and that a door leading to the outside was badly damaged. Isom testified that his father kept a considerable sum of money on his person and on the day in question had at least $1,200 or $1,500 in a billfold in his pocket.

Isom rushed to LaGrange and reported what he had found to police. An ambulance was dispatched to the Grady residence and his father was taken to the hospital in Kinston. X-rays disclosed a fractured skull and "intercranial bleeding," a wound which the emergency room physician recognized as being "almost always fatal." He was taken to Craven County Hospital in New Bern where he was treated for head and brain injuries; he died as a result of those injuries on 2 March 1981. The pathologist who performed an autopsy on the victim found that his brain was bruised and testified that the brain injury he observed was "consistent with having been produced" by a blow with a brick, and "that the most probable cause of ... death was this traumatic injury ... to his head."

Following the death of Wilbert Grady, a warrant was issued for defendant's arrest. On 9 March 1981 police officers went to a house near Freemont for the purpose of serving the warrant. After being admitted to the house and finding defendant hiding in the corner of a clothes closet, they arrested him.

On 10 March 1981, while defendant was in custody, he signed a written statement relating to the charged offense. In the statement defendant admitted going to Wilbert Grady's house at 1:45 p.m. on 24 February 1981. After he knocked on the door and received no answer, he took a brick off a shelf on the porch and broke in the door. Wilbert Grady was sitting in a chair "just about to go to sleep." Defendant hit Grady in the head with the brick. He then "went through" everything in the front room, took a purse from Grady's front pants pocket and left. After leaving the house, he took approximately $1,000 contained in the purse and threw the purse into a field. Defendant went to a house in the area and got Robert Dawson to take him to LaGrange where he purchased about $150 worth of groceries and some marijuana. He gave most of the money away.

Defendant's only evidence was his own testimony, which is summarized as follows:

At the time of trial defendant was eighteen years of age and had completed the seventh grade. Wilbert Grady was his great-uncle. On 24 February 1981, defendant was not working and went to Grady's house to borrow money from him. As he was walking the two and one-half miles from LaGrange to Grady's house, he caught a ride with Andre Nevins. On arriving at the Grady house, defendant knocked on the door and Grady admitted defendant and Nevins. Defendant and Nevins entered and defendant told Grady what he wanted; Grady loaned defendant $30. Grady then asked defendant to hang a shotgun, which he had near him, in the front room. Defendant did so. When defendant returned to the room Grady was in, he observed Grady sitting in his chair with blood coming from his head. Nevins was holding Grady's purse and counting the money that was in it. Defendant "cussed" at Nevins, snatched the purse out of his hand, threw it on the floor and left the house running. Before leaving the house defendant criticized Nevins for taking the money and told him that he did not want "to have nothing to do with it." Defendant went to Pauline Morgan's house where he prevailed on Robert Dawson to take him to LaGrange. In LaGrange he went to a residence and purchased some marijuana. Thereafter, as he was walking to another part of town, he saw Nevins in his car. He entered the Nevins car and remained there for about ten minutes. While in the car on that occasion, Nevins gave him $300. He then left Nevins and did not see him again. Defendant did not at any time strike Grady, rob him or harm him in any way.

Andre Nevins was not called as a witness by either the state or the defendant.

The court submitted to the jury alternative verdicts of: (1) first degree murder on alternative theories of premeditation and deliberation and the felony murder rule; (2) second degree murder on alternative theories of malice and what the trial court referred to as "a second degree felony rule"; and (3) not guilty. The jury found defendant guilty of second degree murder on the basis of malice and "under the second degree felony rule."

I.

By his first assignment of error defendant contends the trial court erred in failing to instruct the jury during the jury selection process that defendant's eligibility for parole if he were sentenced to life imprisonment, and the probability that defendant would in fact be executed if he were sentenced to death, were not proper matters for their consideration.

Before trial defendant filed a written motion stating: The state would seek the death penalty in his case; potential jurors would be asked about their attitudes concerning capital punishment during the jury selection; and he anticipated some prospective jurors would express their belief that a death sentence would never be carried out, that a higher court would "set him free," or that if he received a life sentence, he would be released from prison on parole after only a few years. Defendant requested that if any prospective juror so responded, the court then instruct the juror not to speculate upon "these matters," that the jury is duty-bound to follow the law as given to them by the court, and that "death means death and life imprisonment means life imprisonment."

The record discloses that during jury selection, after the state had passed the jury, defendant's attorney questioned prospective jurors in the presence of all potential jurors on whether they had read or heard anything that would cause them to believe that defendant would not actually be executed even if a death sentence were pronounced, or would not spend his life in prison if he were sentenced to life imprisonment. Five prospective jurors seated in the jury box stated that defendant "would probably be paroled or the case would be appealed or the death sentence would not actually take place."

The court denied defendant's request that these jurors be instructed as requested in defendant's pretrial motion. The record reveals that "[s]ix jurors who were in the jury box at the time of the simultaneous responses ultimately remained on the [jury] which convicted the Defendant."

Defendant relies on State v. Conner, 241 N.C. 468, 85 S.E.2d 584 (1955), and State v. Flippin, 280 N.C. 682, 186 S.E.2d 917 (1972). In Conner defendant was tried for first degree murder, and the state sought the death penalty. After the jurors had deliberated for some time, they returned to the courtroom. One juror wanted to know if defendant would be eligible for parole if he were given life imprisonment. The trial judge stated that he could not answer that question and the jury returned to their room. They returned a verdict of guilty without recommendation of life imprisonment. Defendant appealed from the judgment imposing a death sentence. In granting a new trial this Court held that "[w]hen the question of eligibility for parole arises spontaneously during the deliberations of the jury, and is brought to the attention of the court by independent inquiry of the jury and request for information," 241 N.C. at 471, 85 S.E.2d at 587, the court should give the jurors

a positive instruction to put the irrelevant question, and matters relating thereto, out of their minds; for example, by having the court reporter read to the jury the pertinent part of the original charge bearing on the question of the right of the jury to recommend life imprisonment under application of the 1949 statutory amendment, and by further instruction in substance as follows: that the question of eligibility for parole is not a proper matter for the jury to consider and that it should be eliminated entirely from their consideration and dismissed from their minds; that in considering whether they should recommend life imprisonment, it is their duty to determine the question as though life imprisonment means exactly what the statute says: 'imprisonment for life in the State's prison,' and that they should resolve the question of mitigation of punishment in the exercise of their unbridled discretion, wholly uninfluenced by considerations of what another arm of the government might do or might not do in the future by way of commutation, pardon, or parole.

241 N.C. at 471-72, 85 S.E.2d at 587.

In State v. Flippin, supra, 280 N.C. 682, 186 S.E.2d 917, the defendant was charged with rape, and the state was seeking the death penalty. After the...