State v. Larrimore

• Decision Date: 05 May 1995
• Docket Number: No. 241A93,241A93
• Citation: 456 S.E.2d 789,340 N.C. 119
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. George Douglas LARRIMORE.

Page 789

456 S.E.2d 789

340 N.C. 119

STATE of North Carolina v. George Douglas LARRIMORE.

No. 241A93.

Supreme Court of North Carolina.

May 5, 1995.

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

Thomas F. Loflin, III, Durham, for defendant-appellant.

WEBB, Justice.

The defendant first assigns error to the allowance of peremptory challenges to two black jurors. He contends that by the allowance of the challenges, there was impermissible racial discrimination in the selection of the jury. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The defendant contends that his equal protection rights under the Fourteenth Amendment and his right to an impartial jury under the Sixth Amendment to the Constitution of the United States were violated by the allowance of these peremptory challenges.

The Supreme Court of the United States held in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), that a defendant's Sixth Amendment right to a trial by jury is not violated by the allowance of peremptory challenges by the State. There is no merit in this argument by the defendant that his Sixth Amendment rights were infringed.

As to the defendant's claim that his equal protection rights were violated by the use of the peremptory challenges, the prosecuting attorney placed in the record his reasons for the challenges. He believed the first of the two jurors was not a registered voter in Brunswick County, he perceived "some reluctance" in his "no" answer to a question regarding fairness, and the prospective juror indicated that "he thought he had seen the Defendant's face somewhere." As to the second prospective juror, she was single; she had never held a job; and she was close to the same age as the defendant's son, who was a potential witness for the defendant. The court found that these rationales were "reasonable and acceptable, and are race neutral."

According, as we must, great deference to the findings of the trial court, we cannot find error in its findings of fact and conclusions. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S. 1006, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994); State v. Thomas, 329 N.C. 423, 407 S.E.2d 141 (1991). For examples of peremptory challenges which were deemed acceptable under Batson, see State v. Jackson, 322 N.C. 251, 255, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1027 (1989).

This assignment of error is overruled.

The defendant, in his next assignment of error, contends that the trial court erred in instructing the jury regarding the testimony of interested witnesses. The defendant did not object at trial, so we must review this contention under the plain error standard of review. The trial court gave the questioned instruction ex mero motu in explanation of a line of questions posed by the prosecution during the jury voir dire. The trial court instructed as follows:

The law of this State permits the State to grant immunity to someone who has committed a crime, and allow them not to be prosecuted in exchange for their cooperation, to testify as a witness for the State. Or the State can make an agreement with a potential witness for a sentence concession, that is, to reduce in some way either the charge or the sentence that's going to be imposed in that person's case in exchange for that person's cooperation and testimony.

If such a person testifies, and there is some concession that the State has made in exchange for that testimony, the jury is required to examine that person's testimony with the greatest of care and caution to determine whether or not you will believe or disbelieve that testimony.

However, you are required to consider it. And if after examining it you--you believe all, or part of the testimony, then you would treat what you believe the same as any other believable evidence in the case.

Is there anybody who--who cannot follow those requirements of the law as a juror if participating in this trial? Again I say, you are required to consider that testimony, and you are required to accept what you believe the same as any other believable evidence. If you choose--if you believe that testimony, after giving it great care and caution in light of the concessions that the State has made.

(Emphasis added.) The defendant contends the instructions require acceptance of such testimony and in so doing, invade the province of the jury. We disagree. The instruction is a correct statement of the law. State v. Martin, 294 N.C. 253, 261, 240 S.E.2d 415, 421 (1978). It was not error to give it. It does not require the jury to assign a certain weight to the evidence, but rather informs the jury that should it determine the evidence is believable, then the evidence takes on the same tenor as all other credible evidence before the jury. This assignment of error is overruled.

The defendant assigns as error a comment made early in the jury selection process by the prosecutor, which the defendant asserts amounted to a personal endorsement of the credibility of Ray McMillian. While questioning a panel of prospective jurors, the prosecutor asked:

Will the State's reliance on the testimony of a confessed murderer, who has received some plea concessions in exchange for his truthful testimony at this trial, will the State's reliance on that cause any of you any problems in listening to his testimony, and listening--and weighing it as you weigh all the testimony?

(Emphasis added.) The defendant contends the use of the phrase "truthful testimony" constitutes an impermissible personal voucher of the truthfulness of Mr. McMillian. The defendant relies upon United States v. Smith, 962 F.2d 923 (9th Cir.1992), as the authority for his position. In Smith, the circumstances surrounding the questioned argument were much more egregious. The prosecutor's closing argument in Smith included repeated personal assurances to the jury through direct comment and by inference that the testimony of a crucial witness was true. The court held that "[t]he prosecutor's recurrent harping on the issue of his special role was clearly improper. The repeated comments also demonstrate that the errors were not inadvertent." Id. at 935. We do not find Smith applicable to the instant case.

Here, the prosecutor made a single comment which contained a direct quote from the language of the plea agreement. We do not believe the prosecuting attorney by doing so made a personal endorsement of the truthfulness of Ray McMillian. This was left to the jury. This assignment of error is overruled.

The defendant next assigns as error in his capital trial the trial court's conducting of six unrecorded bench conferences not attended by the defendant. The defendant did not object at trial. Of the six challenged conferences, a review of the record indicates that three were held at the request of the defendant's counsel, two at the court's request not in response to any objection, and one at the court's request in response to an objection by the State. Counsel for the defendant were present at all conferences. The defendant contends that State v. Callahan, 83 N.C.App. 323, 350 S.E.2d 128 (1986), disc. rev. denied, 319 N.C. 225, 353 S.E.2d 409 (1987), is controlling. We do not agree. In Callahan, the Court of Appeals held that the trial court erred in failing to record the questions and answers in the court's inquiry as to the defendant's understanding of his rights pertaining to proceeding pro se. There can be no doubt that such an inquiry necessarily involves the defendant's constitutional rights and therefore must be recorded. We do not find that the conferences at issue in this case rise to the same level.

Questions involving the defendant's unwaivable state constitutional right in capital cases to be present and to have all bench conferences recorded arise frequently. In State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991), we reviewed the issue extensively. In Buchanan, this Court concluded:

Though defendant himself did not attend the conferences in this case, we conclude that the trial court's bench conferences with defense counsel and counsel for the State did not violate defendant's state constitutional right to be present at all stages of his trial. As stated above, defendant was personally present in the courtroom during the conferences. Further, and perhaps more importantly, his actual presence was not negated by the trial court's actions. At each of the conferences defendant was represented by his attorneys. Defendant was able to observe the context of each conference and inquire of his attorneys at any time regarding its substance. Through his attorneys defendant had constructive knowledge of all that transpired. Following the conferences defense counsel had the opportunity and the responsibility to raise for the record any matters to which defendant took exception. At all times defendant had a first-hand source of information as to the matters discussed during a conference. It also is relevant that bench conferences typically concern legal matters with which an accused is likely unfamiliar and incapable of rendering meaningful assistance. Other conferences typically deal with administrative matters that are nonprejudicial to the fairness of defendant's trial. In addition, such conferences do not diminish the public interest associated with defendant's right to presence. Unlike the excusal of prospective jurors following ex parte communications, in this case defendant, through his attorneys, had every opportunity to inform the court of his position and to contest any action the court might have taken.

Id. at 223, 410 S.E.2d at 844-45; see State v. Upchurch, 332 N.C. 439, 455, 421 S.E.2d 577, 586 (1992). In Upchurch, we found the fact that the defendant's own counsel requested several unrecorded conferences...