State v. Jackson

• Decision Date: 09 August 1983
• Docket Number: No. 598A82,598A82
• Citation: 309 N.C. 26,305 S.E.2d 703
• Parties: STATE of North Carolina v. Henry Louis JACKSON.
• Court: North Carolina Supreme Court

Page 703

305 S.E.2d 703

309 N.C. 26

STATE of North Carolina v. Henry Louis JACKSON.

No. 598A82.

Supreme Court of North Carolina.

Aug. 9, 1983.

Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

Donald M. Dawkins, Rockingham, for defendant-appellant.

MARTIN, Justice.

Defendant brings forth forty-three questions for review. ¹ For clarity, some of them will be grouped together in this opinion when appropriate. For reasons stated below, judgment must be arrested as to the kidnapping charge and the robbery charge, and the death sentence for murder is vacated and replaced with a sentence of life imprisonment.

Defendant alleges that the trial court erred in its rulings on a number of pretrial motions. Defendant first claims that the trial court erred in denying his 12 July 1982 motion to separate and sequester Joseph Lilly and James Pemberton until trial. Lilly and Pemberton were arrested 24 March 1982 and were charged with murder in the first degree, kidnapping, and robbery with a dangerous weapon of George McAulay. On 28 March 1982, Lilly and Pemberton made statements to authorities about the events of 24 March 1982. Sometime in April 1982, they were placed in the same cell in the Richmond County jail, where they remained until trial. On 12 July 1982, defendant moved to separate the two, arguing that their presence together allowed them to collaborate to produce a version of the events of 24 March which would prejudice defendant at trial.

A trial judge has the discretion to exclude and sequester witnesses during the course of trial. N.C.Gen.Stat. § 15A-1225 (1978); State v. Cross, 293 N.C. 296, 237 S.E.2d 734 (1977); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976). Similarly, for good reason and at his discretion, a trial judge may order the separation before trial of witnesses who are in the custody of the state. In the present case, defendant has failed to show that the trial judge abused his discretion in denying defendant's motion. By the time defendant made this motion, 12 July, Pemberton and Lilly had been housed together for many weeks. When moving for their separation, defendant presented no evidence that the two men were collaborating or had collaborated to devise a false account of the events of 24 March. Further, as all parties present at the motion hearing were aware, if Lilly and Pemberton were called to testify at trial, defendant would have the opportunity to cross-examine them to bring out any inconsistencies between their trial testimony and the statements they had given 28 March. As Justice Ruffin stated: "The separation of witnesses ... is not founded on the idea of keeping the witnesses from intercourse with each other. That would be a vain attempt. The expectation is not to prevent the fabrication of false stories, but by separate cross-examination to detect them." State v. Silver, 14 N.C. 332, 333 (1832). Defendant's assignment of error is without merit.

Defendant next argues that the trial court erred in granting the state's motion to consolidate for trial the charges of kidnapping, robbery with a dangerous weapon, and murder in the first degree. Defendant argues that the consolidation of the three charges against him hindered his defense at the sentencing phase of his trial because the jury was then able to consider all of the evidence presented at the guilt phase.

N.C.G.S. 15A-926(a) provides that "[t]wo or more offenses may be joined ... for trial when the offenses ... are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." The granting of a motion to consolidate is reviewable only for abuse of discretion. E.g., State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). If there was no abuse of discretion, the fact that in hindsight the court's ruling adversely affected defendant's defense will not convert the court's ruling into error. Cf. State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983) (defendant's trial strategy irrelevant to propriety of court's ruling).

In the present case defendant has failed to show that the trial court abused its discretion in granting the state's motion to consolidate. All of the evidence shows that defendant's acts were part of a single scheme or plan to take the victim's money by force. Had the offenses been severed, the murder could have been prosecuted on a theory of felony murder, in which case evidence supporting the charges of kidnapping and armed robbery could have been presented before the jury during that trial. The trial court's decision to consolidate the charges for trial under N.C.G.S. 15A-926(a) was not error. In addition, the trial court did not err in denying defendant's subsequent motion to sever the offenses.

Next, defendant contends that the trial court erred by denying his pretrial motion to exclude the death penalty as a possible sentence on grounds that the so-called "death qualification" of prospective jurors denied him his right to a fair trial. See generally Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982); State v. Williams, 305 N.C. 656, 292 S.E.2d 243, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). Defendant also argues that for this reason the trial court erred in denying his pretrial motion to empanel different juries for the guilt determination phase and the sentencing phase of his trial. Finally, defendant argues that because a sentence to death is cruel and unusual punishment, it should have been excluded from consideration at his trial.

This Court has held consistently that the death qualification of jurors is not error, and for this reason, defendant's assignment of error is overruled. See, e.g., State v. Hill, 308 N.C. 382, 302 S.E.2d 202 (1983); State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983). Defendant's argument that the death penalty is cruel and unusual is also without merit. In State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980), this Court held that the death penalty is not per se cruel and unusual punishment. See also, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Kirkley, supra.

Defendant next contends that the trial court erred by denying his pretrial motions for discovery of statements made by state's witnesses James Pemberton and Joseph Lilly to law enforcement officers. Under N.C.G.S. 15A-904(a), the state is not required to give to defendant before trial any statements made by witnesses of the state. If such evidence is material and favorable to the defendant, the state is required to disclose it to defense counsel at trial. State v. Hardy, supra, 293 N.C. 105, 235 S.E.2d 828 (1977); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the instant case, the prosecution gave defense counsel the pretrial statements of Pemberton and Lilly at trial, before Lilly and Pemberton took the stand. Standing alone, this satisfies the requirement of due process explained in Hardy, Agurs, and Brady, supra. However, we also note that the substance of Lilly's and Pemberton's pretrial statements were incorporated into affidavits used to support the state's application for search warrants of defendant's residence. As these warrants were of public record, defendant could have examined them before trial to discover the substance of Lilly's and Pemberton's statements. Defendant's assignment of error is overruled.

Defendant next contends that the trial court erred in denying his pretrial motion for sequestration of potential jurors and individual voir dire of prospective jurors. Defendant argues that "[i]ndividual voir dire and sequestration of jurors during voir dire would have eliminated some of the embarrassment caused by jurors sitting in exposure before other potential jurors during jury selection."

N.C.G.S. 15A-1214(j) provides that "[i]n capital cases the trial judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection." A trial court is not required to permit individual voir dire of jurors in a capital case. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982). Whether to allow sequestration and individual voir dire of prospective jurors is a matter for the trial court's discretion, and its ruling will not be reversed absent a showing of abuse of discretion. State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979). Defendant's argument fails to establish that the trial court abused its discretion in denying his motion. Accordingly, we have determined that the trial court's ruling was not error.

The defendant next argues that the trial court erred in denying his pretrial motion to dismiss all three charges against him. Defendant claims that the indictments for each offense were defective and, further, that because the trial judge erred in consolidating the offenses for trial, all indictments should have been quashed. As explained above, the trial court did not err in consolidating for trial the charges against defendant. On that score, defendant's claim of error is without merit. We now consider defendant's argument that the indictments for each offense were defective.

In general, when an indictment charges a crime in plain, intelligible and explicit language in the words of the statute, it is proper. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976); State v. Penley, 277 N.C. 704, 178 S.E.2d 490 (1971). We have examined each of the indictments and the statutes upon which they are predicated. The indictments...