State v. Gregory

• Decision Date: 09 February 1996
• Docket Number: No. 410A94,410A94
• Citation: 342 N.C. 580,467 S.E.2d 28
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Christopher GREGORY.

Page 28

467 S.E.2d 28

342 N.C. 580

STATE of North Carolina v. William Christopher GREGORY.

No. 410A94.

Supreme Court of North Carolina.

Feb. 9, 1996.

Burton Craige and Donnell Van Noppen III, Raleigh, for defendant-appellant.

ORR, Justice.

Defendant was indicted for first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and felonious breaking and entering. He was tried capitally to a jury that found him guilty of all charges. The charges against defendant arose out of an incident that occurred at the home of defendant's seventeen-year-old former girlfriend, Evette Howell. The State's evidence tended to show that defendant broke into the Howell home and retrieved a .25-caliber handgun belonging to Evette's father from the father's bedroom closet. Defendant walked into Evette's bedroom and fatally shot her in the head in the presence of their eighteen-month-old child. Defendant then crossed the hall into the bedroom of Evette's fifteen-year-old brother, Fonzie, struck him in the head with the gun and shot him in the forehead. Fonzie survived, suffering life-altering injuries. Although defendant had confessed to shooting Evette, he argued at trial that he did not have a specific intent to kill and that his cousin, who was in the house when the shootings occurred, shot Fonzie.

Defendant contends that he should receive a new trial because his constitutional right to trial by an impartial jury was violated during jury selection. We agree.

On 11 August 1992, the trial court found defendant indigent and appointed Wade Leonard and William Ijames to represent him. During jury voir dire, the trial court relieved attorneys Leonard and Ijames and appointed David Minor and Sam Winthrop as defendant's trial counsel. The case was rescheduled for trial beginning on 1 August 1994.

Jury selection began on 1 August 1994. After the luncheon recess on 2 August, the trial court addressed the prospective jurors called for 2 August. The court welcomed the jurors, stated the offenses with which defendant was charged, introduced the attorneys, and stated the statutory qualifications for jury service. The court then addressed the issue of jury deferment and asked prospective jurors if anyone had a compelling reason for being excused or deferred and, if so, to state the reason in open court.

One of the prospective jurors who stepped forward was Diana Ijames. She asked to be excused because she had assisted defendant's former attorney, William Ijames, in preparing the defense of this case. The discussion between the court and Ms. Ijames occurred in the presence of eight prospective jurors who ultimately were chosen to sit on the petit jury that deliberated on the case. The following is the specific dialogue that took place:

PROSPECTIVE JUROR: My name is Diana Ijames.

THE COURT: I-j-a-m-e-s?

PROSPECTIVE JUROR: I work for Mr. Bill Ijames, William James Ijames, the attorney on the first case. So I helped prepare the defense for Mr. Chris Gregory.

THE COURT: Do you believe if you were to serve as a juror in this case that you could base your verdict entirely on what you hear from the witness stand over here and the Court's instruction to you on the law?

PROSPECTIVE JUROR: I feel I could, sir.

THE COURT: All right. Do you feel like in connection with the preparation of this case that you learned some things during the course of the preparation that would be confidential and if learned by the State would be favorable to the State?

PROSPECTIVE JUROR: Would be favorable to the State?

THE COURT: To the State.

PROSPECTIVE JUROR: Yes, sir, I do.

THE COURT: Do you feel like those things that you learned in a confidential fashion during the preparation for the trial of the case would influence your decision in the case, your verdict in the case?

PROSPECTIVE JUROR: (No response from prospective juror.)

THE COURT: In other words, you apparently have some information that other jurors would not have; is that right?

PROSPECTIVE JUROR: Yes, your Honor.

THE COURT: Would that influence your decision in the case if you were allowed to serve on the jury?

MR. MINOR [defendant's attorney]: May we approach the bench before you continue with this question?

PROSPECTIVE JUROR: I feel it may influence my decision, yes, sir.

After a bench conference, the court excused Ms. Ijames and gave the remaining prospective jurors the following instruction:

Ladies and gentlemen of the jury that have been summoned for jury duty, you are instructed at this time anything you have heard from this particular juror you have to strike it from your mind, not to give it any consideration at all.

Defendant argues that this dialogue constituted error that violated his constitutional right to trial by an impartial jury. Although defendant requested the limiting instruction, he made no objection during the court's questioning of Ms. Ijames and does not specifically claim in his assignment of error that it constituted plain error. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides, in pertinent part, that "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion...."

Under the plain error rule, errors or defects affecting substantial rights may be addressed even though they were not brought to the attention of the trial court. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Rule 10(c)(4) of the North Carolina Rules of Appellate Procedure provides:

In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.

In limited situations, this Court may elect to review such unpreserved issues for plain error, if specifically and distinctly contended to amount to plain error in accordance with Rule 10(c)(4). This Court has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence. See State v. Sierra, 335 N.C. 753, 440 S.E.2d 791 (1994); State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993); State v. Odom, 307 N.C. 655, 300 S.E.2d 375.

This specific error alleged by defendant involves neither jury instructions nor a ruling on the admissibility of evidence. Moreover, since defendant did not object at trial or allege plain error, he has failed to properly preserve this issue for appeal. State v. Moseley, 338 N.C. 1, 36, 449 S.E.2d 412, 433-34 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 1815, 131 L.Ed.2d 738 (1995); N.C.R.App.P. 10.

However, Rule 2 of the North Carolina Rules of Appellate Procedure provides:

To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.

In State v. Moseley, we elected to apply plain error analysis even though the defendant had neither objected nor alleged plain error. We stated that "since this is a case in which the death penalty was imposed, we will consider the merits of the issue under a plain error analysis." Moseley, 338 N.C. at 36, 449 S.E.2d at 434. This reasoning is consistent with prior holdings by this Court in capital cases in which we elected to address an error not properly preserved. See State v. Payne 328 N.C. 377, 394, 402 S.E.2d 582, 592 (1991) (although defendant waived his right to have an issue considered on appeal by failing to object or move for mistrial, because this was a capital case, the Court chose to address the issue); State v. Price, 326 N.C. 56, 87, 388 S.E.2d 84, 102 (in a capital case, even though defendant did not object at trial and the assignment of error was improperly submitted to the appellate court, the Court may review the prosecutor's argument), sentence vacated on other grounds, 498 U.S. 802, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990); State v. Warren, 289 N.C. 551, 558, 223 S.E.2d 317, 322 (1976) (where defendant did not object or assign error, because this was a capital case, the Court ex mero motu took cognizance of the error); State v. Chance, 279 N.C. 643, 657, 185 S.E.2d 227, 236 (1971) (in capital cases, the Court reviews the record and ex mero motu takes notice of prejudicial error), sentence vacated in part on other grounds, 408 U.S. 940, 92 S.Ct. 2878, 33 L.Ed.2d 764 (1972); State v. Fowler, 270 N.C. 468, 472, 155 S.E.2d 83, 86 (1967) (in a capital case, the Court picks up any errors that appear in the record, whether excepted to and assigned as error or not); State v. Knight, 248 N.C. 384, 390, 103 S.E.2d 452, 456 (1958) (where defendant did not assign error, because the Court was dealing with a capital case, it took cognizance of the error ex mero motu ); State v. Herring, 226 N.C. 213, 214, 37 S.E.2d 319, 320 (1946) (although assignments of error were not in compliance with the rules, because this was a capital case wherein the life of the defendant was at stake, these assignments of error were considered).

In this enlightened age the humanity of the law is such that no man shall suffer death as a penalty for crime, except upon conviction in a trial free from substantial error and in which the constitutional and statutory safeguards for the protection of his rights have been scrupulously observed. Therefore, in all capital cases reaching this Court, it is the settled policy to examine the record for the ascertainment of reversible error. If, upon such an examination, error is found, it then becomes the duty of...