State v. Harvell

• Decision Date: 30 July 1993
• Docket Number: No. 318A92,318A92
• Citation: 432 S.E.2d 125,334 N.C. 356
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Barry Michael HARVELL and Christopher Eugene Ingold.

Page 125

432 S.E.2d 125

334 N.C. 356

STATE of North Carolina v. Barry Michael HARVELL and Christopher Eugene Ingold.

No. 318A92.

Supreme Court of North Carolina.

July 30, 1993.

Michael F. Easley, Atty. Gen. by Mary Jill Ledford, Asst. Atty. Gen., Raleigh, for the State.

J. Kirk Osborn, Chapel Hill, for defendant-appellant Barry Michael Harvell.

Ernest H. Morton, Jr., Albemarle, for defendant-appellant Christopher Eugene Ingold.

MITCHELL, Justice.

The two defendants, Barry Michael Harvell and Christopher Eugene Ingold, were indicted for first-degree murder. Their cases were joined for trial at the 10 February 1992 Criminal Session of Superior Court, Stanly County. The jury found the defendant Ingold guilty of second-degree murder, and the trial court entered judgment sentencing him to imprisonment for twenty years. The jury found the defendant Harvell guilty of first-degree murder. At the conclusion of a separate capital sentencing proceeding, pursuant to N.C.G.S. § 15A-2000, the jury recommended that Harvell receive a sentence of imprisonment for life, and the trial court entered judgment accordingly. The defendant Harvell appealed to this Court as a matter of right pursuant to N.C.G.S. § 7A-27(a). The defendant Ingold appealed the judgment against him to the Court of Appeals; his motion to bypass the Court of Appeals with regard to his appeal was allowed by this Court on 16 November 1992.

The evidence introduced at trial tended to show, inter alia, the following. On 9 June 1991, the defendants Christopher Ingold and Barry Harvell drove with Gary Hamilton to Badin Lake in Stanly County. Upon arriving at Badin Lake, the three men sat at a picnic table where they drank beer and engaged in conversation with a group at the next picnic table. An argument broke out between the defendant Harvell and members of the group at the next picnic table. At some point in the argument, someone at the other picnic table indicated that he had a gun. The defendant Ingold and Gary Hamilton then drove to Tony Laton's home to get a gun. Laton gave the two men his twelve-gauge shotgun, and they returned to Badin Lake.

Shortly after Ingold and Hamilton returned to Badin Lake, a fight started between the defendant Harvell and one of the men in the group at the other picnic table. Harvell was cut on the leg with a knife during the fight. Another man from the other group approached Hamilton and hit him in the face. These events lasted approximately one minute and ended when the men in the other group drove away in their vehicles.

Hamilton saw the defendants Harvell and Ingold walking in the direction that the other men had gone. Harvell was carrying a shotgun, and Ingold was carrying a wooden post. Hamilton got into his truck and picked up Harvell and Ingold. Hamilton had driven around the "pier area" several times when Harvell ordered him to stop. Harvell and Ingold got out of the truck and walked toward a group of people in the "pier area." Harvell was still carrying the shotgun. Ingold no longer had the wooden post but was carrying a steel pipe. Harvell passed a security guard, Mary Smith, who tried to stop him from going to the lake, telling him that she had called the sheriff. In response, the defendant Harvell stated, "I don't give a damn who's coming. The bitch started it and I'm going to finish it." Approaching the group in the "pier area," Harvell aimed the shotgun at Dena Durham, but her boyfriend, Dean Russell, pushed her aside. Harvell then fired the shotgun, literally blowing off the top of Dean Russell's head and killing him. Harvell fired two more shots, but no one else was hit. When Harvell shot Dean Russell, the defendant Ingold was standing close behind Harvell and holding the steel pipe in a raised position. Following the killing, Harvell and Ingold jumped back into Hamilton's truck and went to Tony Laton's home where they were subsequently arrested.

Other evidence introduced at trial is discussed at other points in this opinion where pertinent to the issues raised by the defendants.

APPEAL OF THE DEFENDANT BARRY MICHAEL HARVELL

By an assignment of error, the defendant Harvell contends that the trial court erred by admitting the improper opinion testimony of the security guard, Mary Smith. Smith testified that Harvell "said something else to me that indicated to me that he was planning to shoot a woman." However, when Smith was asked what the defendant had said to her in this regard, she answered, "I don't remember what he said." The defendant contends that the admission of Smith's opinion testimony violated Rule 701 of the North Carolina Rules of Evidence which provides, in pertinent part, that opinion testimony of a lay witness or testimony as to an inference by a lay witness is allowed where the witness's opinion or inference is "rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C.G.S. § 8C-1, Rule 701 (1988). Assuming arguendo that the admission of this part of Smith's testimony violated Rule 701, we conclude that the error was harmless.

A defendant is prejudiced by errors arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial. N.C.G.S. § 15A-1443(a) (1988). Smith had already testified that the defendant Harvell, while armed with a shotgun, had expressly stated to her that "the bitch started it and I'm going to finish it." Additionally, the testimony of eyewitness Patricia Long tended to show that as the defendant Harvell approached the victim and the victim's girlfriend with the shotgun in his hand, Harvell said, "bitch, you started it and I'm going to finish it." In light of such strong and unequivocal evidence of direct threats against a woman, made by the defendant while she was in his presence and he was armed with a firearm, we conclude that there is no reasonable possibility that the testimony complained of in this assignment affected the result reached by the jury at trial. Therefore, any error in the admission of this testimony was harmless. Id.; see State v. Fields, 315 N.C. 191, 200, 337 S.E.2d 518, 524 (1985) (evidence that a defendant was carrying a gun supported an inference that he anticipated a confrontation and gave some forethought to how he would deal with the situation). This assignment of error is without merit.

By another assignment of error, the defendant Harvell contends that his trial counsel, without his consent or authorization, argued that the jury should find him guilty of voluntary manslaughter, thus depriving him of his constitutional right to the effective assistance of counsel. During closing arguments, his counsel argued that the defendant Harvell was not guilty of first or second-degree murder. His counsel then stated, "I submit to you that based upon the evidence presented in terms of a criminal offense, that the one that most closely--or the one that is most closely kind [sic] to this is the offense of voluntary manslaughter, that being there was provocation." At issue in this case is whether the defendant's trial counsel admitted to the jury that the defendant Harvell was guilty of voluntary manslaughter.

In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 106 S.Ct. 1992, 90 L.Ed.2d 672 (1986), we held that a defendant has been denied effective assistance of counsel if his counsel admits his guilt to the jury without his consent. We have also held that an argument that the defendant is innocent of all charges, but if he is found guilty of any of the charges it should be of a lesser crime because the evidence came closer to proving that crime than any of the greater crimes charged, is not an admission that the defendant is guilty of anything, and the rule of Harbison does not apply. State v. Greene, 332 N.C. 565, 572, 422 S.E.2d 730, 733-34 (1992). In the present case, the defendant's counsel never conceded that the defendant was guilty of any crime. He merely noted that if the evidence tended to establish the commission of any crime, that crime was voluntary manslaughter. This was not the equivalent of admitting that the defendant was guilty of any crime. Accordingly, this assignment of error is without merit.

By another assignment of error, the defendant Harvell contends that the trial court erred in permitting the prosecutor to make improper and prejudicial remarks during his opening statement and his closing argument to the jury. The defendant argues that the prosecutor's opening and closing remarks contained statements tending to inflame the jury.

As a general proposition, counsel is allowed wide latitude in jury arguments. State v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992). Counsel is permitted to argue facts supported by evidence which has been presented, as well as reasonable inferences which can be drawn therefrom. State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986). Where, as here, a party fails to object to an opening statement or closing argument, our review is limited to determining whether the remarks were so grossly improper as to require the trial court's intervention ex mero motu. State v. Craig, 308 N.C. 446, 457, 302 S.E.2d 740, 747, cert. denied, 464 U.S. 908, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983). The standard of review is one of "gross impropriety." Id. In the present case, the defendant argues that two portions of the prosecutor's opening statement and closing argument were grossly improper. We will address each of the defendant's contentions individually.

During his opening statement to the jury, the prosecutor made the following remarks:

A warm Sunday afternoon here in Stanly County, Dean Russell and some of his friends decided to go to Badin Lake.... Unbeknownst to Dean Russell and the group in which he was a part, three men...