State v. Fullwood

• Decision Date: 31 July 1996
• Docket Number: No. 37A86-3,37A86-3
• Citation: 343 N.C. 725,472 S.E.2d 883
• Parties: STATE of North Carolina v. Michael Lee FULLWOOD.
• Court: North Carolina Supreme Court

Page 883

472 S.E.2d 883

343 N.C. 725

STATE of North Carolina v. Michael Lee FULLWOOD.

No. 37A86-3.

Supreme Court of North Carolina.

July 31, 1996.

Michael F. Easley, Attorney General by David Roy Blackwell, Special Deputy Attorney General, for the State.

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

FRYE, Justice.

Defendant, Michael Lee Fullwood, was convicted in 1985 of felonious breaking and entering and of the first-degree murder of Deidre Waters. He was sentenced to ten years' imprisonment for the breaking and entering conviction and to death for the first-degree murder conviction. On defendant's direct appeal, this Court found no error in the convictions and affirmed the sentences entered by the trial court. State v. Fullwood 323 N.C. 371, 373 S.E.2d 518 (1988). Subsequently, the Supreme Court of the United States vacated defendant's sentence of death for the murder of Deidre Waters and remanded the case to this Court for further consideration in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Fullwood v. State, 494 U.S. 1022, 110 S.Ct. 1464, 108 L.Ed.2d 602 (1990). On remand, this Court determined that McKoy error had occurred and that the error was not harmless beyond a reasonable doubt and remanded the case for a new capital sentencing proceeding. State v. Fullwood, 329 N.C. 233, 404 S.E.2d 842 (1991). At the new capital sentencing proceeding, the jurors returned a recommendation of death. Judge Claude S. Sitton, in accordance with the jury's recommendation, imposed a sentence of death.

A detailed summary of the evidence introduced during defendant's original trial is set forth in our prior opinion on defendant's direct appeal, in which the majority of this Court found no error in defendant's trial. Fullwood, 323 N.C. 371, 373 S.E.2d 518. Except where necessary to develop and to determine the issues presented to this Court arising from defendant's resentencing proceeding, we will not repeat the evidence supporting defendant's convictions.

Defendant appeals to this Court as of right from the sentence of death. Defendant has brought forward twenty-six assignments of error. After a careful and thorough review of the transcript, record, briefs, and oral arguments of counsel, we reject each of these assignments of error and conclude that defendant's capital sentencing proceeding was free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant's sentence of death.

By an assignment of error, defendant contends that the trial court committed reversible error by dictating that only one of defendant's two attorneys could question jurors during most of the jury selection process. Defendant argues that, during the jury voir dire, the trial court arbitrarily prohibited one of his attorneys from questioning prospective jurors and that this ruling impermissibly infringed on his statutory right to the assistance of two attorneys in a capital trial and his constitutional right to the assistance of counsel. We disagree.

On the second day of jury selection, the trial court stated that only one of defendant's two attorneys would be permitted to question prospective jurors during the remainder of the jury selection process. Defense counsel thrice requested the judge to reconsider, and the requests were denied. Defendant argues that N.C.G.S. § 7A-450(b1) entitles a capital defendant to two attorneys for his trial and sentencing proceeding and that the violation of this statute is per se prejudicial. See State v. Hucks, 323 N.C. 574, 579-81, 374 S.E.2d 240, 244-45 (1988) ("The statute requires the trial court to appoint assistant counsel as a matter of course when an indigent is to be prosecuted in a capital case.").

Defendant, relying on State v. Mitchell, 321 N.C. 650, 365 S.E.2d 554 (1988), and State v. Eury, 317 N.C. 511, 346 S.E.2d 447 (1986), argues that a capital defendant has a constitutional right to have both his attorneys question potential jurors during the jury selection process. Defendant further argues that the court's decision to allow only one of his attorneys to question prospective jurors effectively relegated his second attorney to the position of a paralegal. We disagree.

In both Eury and Mitchell, we held that it was error for the trial court not to allow both attorneys to make closing arguments to the jury because N.C.G.S. § 84-14 specifically provides that "[i]n all trials in the superior courts there shall be allowed two addresses to the jury for the State or plaintiff and two for the defendant, except in capital felonies, when there shall be no limit as to number." N.C.G.S. § 84-14 (1985). We note, however, that nothing in the statute provides that each attorney is entitled to question prospective jurors.

"The primary goal of the jury selection process is to ensure selection of a jury comprised only of persons who will render a fair and impartial verdict." State v. Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 731 (1992). Pursuant to N.C.G.S. § 15A-1214(c), counsel may question prospective jurors concerning their fitness or competency to serve as jurors to determine whether there is a basis to challenge for cause or whether to exercise a peremptory challenge. N.C.G.S. § 15A-1214(c) (1988). The trial judge has broad discretion to regulate jury voir dire. State v. Lee, 335 N.C. 244, 268, 439 S.E.2d 547, 559, cert. denied, 513 U.S. 891, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994). "In order for a defendant to show reversible error in the trial court's regulation of jury selection, a defendant must show that the court abused its discretion and that he was prejudiced thereby." Id. The right to an adequate voir dire to identify unqualified jurors does not give rise to a constitutional violation unless the trial court's exercise of discretion in preventing a defendant from pursuing a relevant line of questioning renders the trial fundamentally unfair. Morgan v. Illinois, 504 U.S. 719, 730 n. 5, 112 S.Ct. 2222, 2230 n. 5, 119 L.Ed.2d 492, 503 n. 5 (1992); Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 1905-06, 114 L.Ed.2d 493, 506 (1991).

In the instant case, the trial court did not abuse its discretion by allowing only one of defendant's two attorneys to question prospective jurors. We note that defendant does not argue, and the record fails to show, that because of the trial judge's control over the jury voir dire, any juror was accepted to which defendant had legal objections upon any ground. Indeed, defendant failed to exercise all of his peremptory challenges. We also note that defendant does not argue, and nothing in the record suggests, that during the jury voir dire, the trial judge prohibited or prevented defendant's attorneys from communicating, prompting, or consulting one another. See State v. Frye, 341 N.C. 470, 492-93, 461 S.E.2d 664, 675 (1995) (defendant's statutory entitlement to two attorneys and constitutional right to effective assistance of counsel were not violated where the trial court ruled that only one attorney from each side could make objections during jury voir dire ), cert. denied, --- U.S. ----, 116 S.Ct. 1359, 134 L.Ed.2d 526 (1996). Because the trial court did not "deny defendant the assistance of a second attorney or so drastically circumscribe the second attorney's role as to render the appointment of two attorneys meaningless," id. at 493, 461 S.E.2d at 675, we conclude that the statute was not violated.

Defendant also contends that the trial court's ruling that only one attorney could question prospective jurors violated defendant's right to the assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution. However, since defendant did not raise this constitutional issue at trial, he has failed to preserve it for our review. See State v. Gibbs, 335 N.C. 1, 42, 436 S.E.2d 321, 344 (1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2767, 129 L.Ed.2d 881 (1994). Accordingly, we reject this assignment of error.

By three assignments of error, defendant contends that the trial court's comments to prospective jurors created a constitutionally unacceptable risk that jurors would not disclose information that was prejudicial to defendant.

Defendant argues that, at several points during jury voir dire, the trial court made comments that discouraged reasonable prospective jurors from volunteering potentially prejudicial information which otherwise might have surfaced during questioning by the parties. When one juror was being asked if she knew defendant, she responded, "Is he a graduate of Asheville High?" The court immediately said, "I don't want jurors asking questions." Three prospective jurors heard this statement by the judge. On the second day of jury selection, the judge said:

[I]t may be possible that I excuse some of you from the jury box at various times while certain questions may be asked, and that I may do that in an effort so that something might not be said that would tend to taint some other jurors. So be cautious in what you may say, and do not say, and do not say anything that would tend to taint any other juror.

All but one of the prospective jurors seated thereafter heard this comment. Defendant essentially contends that the court's instruction had a tendency to discourage prospective jurors from disclosing information that they considered prejudicial. Defendant argues that this was hardly the foundation upon which an impartial jury might be selected.

We note, however, that control of jury voir dire rests within the sound discretion of the trial court. See Lee, 335 N.C. at 268, 439 S.E.2d at 559. In the instant case, defendant has failed to show that the trial court abused its discretion. The transcript shows that defense counsel actively questioned the jurors and that they...