State v. Gell

• Decision Date: 04 February 2000
• Docket Number: No. 469A98.,469A98.
• Citation: 524 S.E.2d 332
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Alan GELL.

524 S.E.2d 332

STATE of North Carolina v. James Alan GELL.

No. 469A98.

Supreme Court of North Carolina.

February 4, 2000.

Michael F. Easley, Attorney General, by David F. Hoke, Assistant Attorney General, for the State.

Nora Henry Hargrove, Wilmington, for defendant-appellant.

FRYE, Chief Justice.

Defendant was indicted on 7 August 1995 for first-degree murder, conspiracy to commit murder, armed robbery, and conspiracy to commit armed robbery. He was tried capitally, and the jury returned a verdict of guilty of first-degree murder on the basis of malice, premeditation, and deliberation; under the theory of lying in wait; and under the felony murder rule. The jury also found defendant guilty of conspiracy to commit murder, robbery with a firearm, and conspiracy to commit robbery with a firearm.

In a separate capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury found as an aggravating circumstance that defendant committed the murder while engaged in the commission of robbery with a firearm. At least one juror found the existence of one nonstatutory mitigating circumstance and an unspecified catchall mitigating circumstance. The jury recommended and the trial court imposed a sentence of death for the conviction of first-degree murder. The trial court also sentenced defendant to terms of imprisonment for the armed robbery and conspiracy convictions.

For the reasons discussed herein, we conclude that defendant's trial and capital sentencing proceeding were free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant's convictions and sentence of death.

The State's evidence presented at trial tended to show that the victim, Allen Jenkins, was killed in his home in Aulander, North Carolina, by two shotgun wounds to the chest, fired at close range by his own shotgun, sometime during the evening of 3 April 1995. The State's primary witnesses were two girls, aged fifteen at the time of the murder, Crystal Morris and Shanna Hall. Morris and Hall both testified pursuant to plea agreements; the girls pled guilty to second-degree murder and armed robbery in exchange for their truthful testimony, and charges against them of first-degree murder and conspiracy were dropped.

In April of 1995, Crystal Morris lived with Shanna Hall and Hall's parents in their home. Hall was dating defendant, and defendant, Hall, and Morris used drugs together. Morris and Hall also knew the victim, Allen Jenkins; he allowed the girls to visit his home and drink alcohol there.

The day of the murder, defendant drove Morris and Hall to Aulander. Morris and Hall went to Jenkins' home, and all three were drinking wine coolers. At one point in the afternoon, Jenkins left his home to go to the nearby Red Apple store to purchase more wine coolers. While Jenkins was gone, Morris telephoned defendant. During the telephone conversation, defendant told Morris that he would have to "hurt our friend," referring to Jenkins, and that he would meet Morris and Hall at the Red Apple. When Jenkins returned home, Morris and Hall walked to the Red Apple, where they met defendant. Morris, Hall, and defendant left the store and began walking. At some point, the three stopped to talk. Defendant was carrying a knife inside his coat, and he told Hall and Morris that he was going to rob Jenkins.

Morris and Hall returned to Jenkins' home and entered through the back door. Morris went with Jenkins to his bedroom to help him connect a VCR. Hall used the bathroom, then left the house and saw defendant, who was outside. Hall exited and reentered the house several times, speaking once to defendant, who did not respond. Morris remained in the house with Jenkins, and the two went into the kitchen to get ice for a drink. Morris testified that as she followed Jenkins from the kitchen back toward his bedroom, defendant, standing partially behind the bedroom door, shot Jenkins twice. Hall testified that she was outside the house when she heard one shot fired. Hall went inside and saw defendant with a gun, yelling at Morris to tell him where the money was. Morris told defendant that Jenkins kept his money in a cabinet. Defendant pried open the cabinet and took money and a checkbook; defendant also carried away from the house a set of keys, the shotgun, a box of shotgun shells, and two empty shells.

After the murder, Morris, Hall, and defendant left, walking across a field behind Jenkins' house. Defendant threw the gun, shells, knife, and keys into some woods that bordered the field. As they walked, defendant stopped under a street light and said, "Let's see how much his life cost him," and counted out approximately $400.00 from the victim's wallet.

The three then walked to Morris' grandmother's home, where Morris called her boyfriend, Gary Scott. Scott arrived shortly thereafter and drove the three home, dropping off defendant first and then taking Morris and Hall to Hall's house. Lacy White testified that he gave defendant a ride about midnight and that when defendant gave him gas money, it looked like defendant had about $500.00.

In the early hours of the morning of 4 April 1995, defendant went to Hall's home. Hall eventually accompanied defendant to Virginia and Maryland in a stolen pickup truck. While defendant was driving, Hall tossed a wallet, some keys, and a checkbook out the window off a bridge. Defendant returned Hall to North Carolina on 6 April 1995. The gun and other evidentiary items were retrieved in July 1995, after Morris showed police their location in the woods behind Jenkins' house.

Jenkins' body was found on 14 April 1995, and an autopsy was performed the next day. The state of decomposition of the body indicated a time of death of between one and two weeks prior to the autopsy. Additionally, development of larvae found on the body was consistent with Jenkins having been killed on 3 April 1995.

Defendant did not testify. However, several witnesses testified on defendant's behalf. The primary theory of the defense was that the date of death proposed by the State was incorrect and that defendant was not involved in the murder at all. Defendant also presented testimony and evidence attempting to impeach the State's two main witnesses, Morris and Hall.

In defendant's first assignment of error, he contends the trial court erred by allowing the prosecutor to refer repeatedly to the potential testimony of State's witnesses as "truthful" during jury voir dire. Specifically, defendant objected to the following question asked of prospective jurors:

You may hear testimony from a witness who is testifying pursuant to a plea agreement. This witness has pled guilty to a lesser degree of murder in exchange for their promise to give truthful testimony in this case.

Do you have any opinions about plea agreements that would make it difficult or impossible for you to believe the testimony of a witness who might testify under a plea agreement?

Defendant contends that whether testimony is truthful is for the jury to decide after hearing the evidence and that it was error to indoctrinate jurors into thinking of the State's witnesses as truthful because they had promised to give truthful testimony.

The goal of jury selection is to ensure that a fair and impartial jury is empaneled. See State v. Fullwood, 343 N.C. 725, 732, 472 S.E.2d 883, 886 (1996),

cert. denied, 520 U.S. 1122, 117 S.Ct. 1260, 137 L.Ed.2d 339 (1997); State v. Gregory, 340 N.C. 365, 388, 459 S.E.2d 638, 651 (1995),

cert. denied, 517 U.S. 1108, 116 S.Ct. 1327, 134 L.Ed.2d 478 (1996). Regulation of the voir dire is a matter within the broad discretion of the trial court. Fullwood, 343 N.C. at 732,

472 S.E.2d at 887. "`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. (quoting 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)).

The trial court in this case did not abuse its discretion by allowing the disputed question. The prosecutor's voir dire inquiry merely outlined the plea agreement under which witnesses might testify and sought to determine whether a plea agreement would have a negative effect on prospective jurors' ability to believe testimony from such witnesses. The question did not invade the province of the jury to judge the credibility of the State's witnesses, nor did it suggest that the jury could disregard its duty to decide which testimony to believe.

Further, at trial, the jurors were instructed that they were the sole judges of the credibility of each witness they heard. They were additionally instructed as follows:

Now, there is evidence which tends to show that two witnesses were testifying under an agreement with the prosecutor for a charge reduction in exchange for their testimony. If you find that they or either of them testified in whole or in part for this reason, you should examine that testimony with great care and caution in deciding whether or not to believe it.

If after doing so, you believe that testimony in whole or in part, you should treat what you believe the same as any other believable evidence.

Jurors are presumed to follow the court's instructions. See Gregory, 340 N.C. at 408,

459 S.E.2d at 663. We conclude that the trial court did not abuse its discretion in permitting the prosecutor to engage in this questioning during voir dire and that defendant was in no way prejudiced by the questioning. This assignment of error is without merit.

By his next two assignments of error, defendant contends that the trial court erred in refusing to excuse prospective jurors Owens and Lassiter for cause and in later denying his motion for additional peremptory challenges. Defendant asserts that both prospective jurors exhibited an extensive knowledge of people involved in the...