State v. Greene

• Decision Date: 05 May 2000
• Docket Number: No. 456A87-5.,456A87-5.
• Citation: 351 N.C. 562,528 S.E.2d 575
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Gary Dean GREENE.

528 S.E.2d 575

351 N.C. 562

STATE of North Carolina v. Gary Dean GREENE.

No. 456A87-5.

Supreme Court of North Carolina.

May 5, 2000.

Michael F. Easley, Attorney General, by William P. Hart, Special Deputy Attorney General, and Amy C. Kunstling, Assistant Attorney General, for the State.

Marshall L. Dayan, Raleigh, for defendant-appellant.

FREEMAN, Justice.

Defendant, Gary Dean Greene, was indicted on 8 December 1986 for robbery with a dangerous weapon and the first-degree murder of his father, Pressly ("Press") Greene. He was tried capitally before a jury in August 1987 in Superior Court, Caldwell County. The jury found defendant guilty of robbery with a dangerous weapon and of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. The trial court subsequently sentenced defendant to death for the murder conviction and to forty years' imprisonment for the robbery conviction. On appeal, this Court found no error. State v. Greene, 324 N.C. 1, 376 S.E.2d 430 (1989).

The United States Supreme Court allowed defendant's writ of certiorari, vacating the sentence of death and remanding for further consideration in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Greene v. North Carolina, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990). This Court found McKoy error and remanded the case for a new capital sentencing proceeding. State v. Greene, 329 N.C. 771, 408 S.E.2d 185 (1991). Defendant was again sentenced to death on 28 May 1998 in Superior Court, Caldwell County.

At the resentencing proceeding, the State's evidence tended to show that in early 1986, defendant and his girlfriend since the summer of 1984, Cindy Jones Hopson, moved into a trailer behind the home of defendant's parents. Thereafter, defendant continued a pattern of habitually stealing money from his father.

On 1 May 1986, around 3:30 p.m., Hopson picked defendant up from work in defendant's car. They used the last of their money to buy beer and drank most of it while riding around in the car. Upon returning to the trailer, defendant and Hopson drank the remaining beer. Wanting more, defendant told Hopson he was going to kill Press and left the trailer carrying a shotgun. When defendant returned to the trailer, he was soaking wet, had "speckles of blood" on his shoes, and was carrying the shotgun. He informed Hopson, "I beat the son of a bitch to death."

Defendant asked Hopson to get him a change of clothes. As Hopson walked to the bedroom to get the clothes, she saw defendant standing in the bathroom holding a wad of money in one hand. Defendant changed and put his wet clothes and shotgun in a brown paper grocery bag.

Defendant and Hopson then left the trailer to take the dog belonging to Hopson's mother to get a haircut. Having forgotten the dog's chain, Hopson returned to the trailer for it at which time she noticed water running out of the basement of Press' house. Defendant told her the water was from his rinsing the basement to wash away Press' blood. Defendant said that he first hit his father when Press was bent over the well in the basement and that he dragged Press' body to the bottom of the basement stairs to make it look like Press had accidentally fallen down the stairs.

On the way to the home of Hopson's mother, defendant and Hopson stopped at a local grocery store to purchase beer with the money that defendant had stolen from his father. As they continued their trip, they drove over the Catawba River bridge on Highway 321, where defendant threw into the river the bag containing his wet clothes and shotgun. Later that same evening, on the return trip to his trailer, defendant threw the shoes he was wearing at the time of the murder into the Catawba River. Further along their route home, defendant instructed Hopson to pull over so he could conceal the money he had stolen. Defendant told Hopson he would kill her if she ever breathed a word of what he had done and she should never admit to anything.

When defendant and Hopson returned home, they were told that defendant's mother had discovered Press dead and had called law enforcement. The investigating officer, Captain Danny Barlow, from the Caldwell County Sheriff's Department, Hopson, and defendant went to defendant's trailer where defendant offered to allow Barlow to search the trailer.

The Caldwell County Sheriff's Department closed Press' case on 27 May 1986, ruling the death accidental.

Sometime after May 1986, Hopson moved out of the trailer. One night in July 1986, when Hopson and her roommate, Susan Newton, were drinking, she told Newton that defendant had murdered Press. In August 1986, the State Bureau of Investigation ("SBI") reopened the case. In October, the SBI interviewed Newton and learned of the July conversation. Hopson eventually told SBI Special Agent Rodney Knowles that defendant murdered his father, Press.

Luminol testing revealed the presence of blood in Press' basement. Additional luminol testing at defendant's trailer showed the presence of blood on the bed, the floor of the bathroom, the commode area, the bathtub, and the sink. On 8 December 1986, defendant was charged with the first-degree murder of his father.

Defendant first contends that the trial court erred by instructing a prospective juror in the presence of other jurors that life imprisonment means imprisonment in the state's prison for life, and that he should not consider what some other arm of the government might do in the future. We disagree.

This Court has determined that a defendant's eligibility for parole is not a proper matter for consideration by a jury in a capital case. State v. White, 343 N.C. 378, 389, 471 S.E.2d 593, 599, cert. denied, 519 U.S. 936, 117 S.Ct. 314, 136 L.Ed.2d 229 (1996). Here, the trial court was faced with a prospective juror who asked, in the presence of other prospective jurors during jury selection, whether parole was a possibility if defendant received a life sentence. Because defendant committed the murder of his father prior to the 1 October 1994 change in North Carolina's sentencing laws, he was eligible for parole and was not entitled to an instruction to the jury that a life sentence means a sentence of life without parole. See State v. Skipper, 337 N.C. 1, 43, 446 S.E.2d 252, 275 (1994),

cert. denied, 513 U.S. 1134, 115 S.Ct. 953, 130 L.Ed.2d 895 (1995). Therefore, the trial court appropriately instructed the juror in language set forth in the pattern jury instructions for capital murders committed prior to 1 October 1994, N.C.P.I.—Crim. 150.10 n. 2 (1998), and previously approved by this Court in State v. Robbins, 319 N.C. 465, 518, 356 S.E.2d 279, 310,

cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987).

Although defendant argues that the trial court's instruction amounted to plain error, we have previously decided that plain error analysis applies only to instructions to the jury and evidentiary matters. See State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998),

cert. denied, 526 U.S. 1147, 119 S.Ct. 2025, 143 L.Ed.2d 1036 (1999). "We decline to extend application of the plain error doctrine to situations in which the trial court has failed to give an instruction during jury voir dire which has not been requested." Id. at 81, 505 S.E.2d at 109. Furthermore, defendant failed to object to the trial court's remarks to the jurors about the meaning of a life sentence. Therefore, defendant has waived his right to assign error to the trial court's instructions. See State v. Anderson, 350 N.C. 153, 187, 513 S.E.2d 296, 317,

cert. denied, ___ U.S. ____, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999).

In his second argument, defendant contends the trial court abused its discretion by excusing for cause a juror who was fit to serve, in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; Article I, Sections 19, 23, and 27 of the North Carolina Constitution; and N.C.G.S. § 15A-1212 (1999). We disagree.

The decision "`[w]hether to allow a challenge for cause in jury selection is ... ordinarily left to the sound discretion of the trial court which will not be reversed on appeal except for abuse of discretion.'" State v. Stephens, 347 N.C. 352, 365, 493 S.E.2d 435, 443 (1997) (quoting State v. Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 731 (1992)),cert. denied, 525 U.S. 831, 119 S.Ct. 85, 142 L.Ed.2d 66 (1998). In the present case, juror Watson, the son of a preacher, told the prosecutor that he had reasonably strong religious beliefs about the death penalty which he had held for a long period of time. He said that, because of those beliefs, it would be hard for him to find the death penalty warranted under any circumstances. He further stated that his religious beliefs would substantially impair his duty as a juror to recommend to the trial court a punishment of death if the evidence warranted it. Upon further questioning, Mr. Watson concluded that he could follow the law and "go by which one I thought was right, whoever proved the most." Thereafter he stated that, if he did that and he thought the death penalty was right, "I'd have [to] vote for that." However, he then said, "and that would be against what I believe." In State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989),cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990), this Court, confronted with similar challenges for cause, held:

The conflicting answers given by these prospective jurors illustrate clearly the United States Supreme Court's conclusion that a prospective juror's bias may, in some instances, not be provable with unmistakable clarity. In such cases, reviewing courts must defer to the trial court's judgment concerning whether the prospective juror would be able to follow the law impartially.

Id. at 624, 386 S.E.2d at 426.

The record fails to show the trial court abused its discretion in determining that the juror's views on the...