State v. Larry

• Citation: 345 N.C. 497,481 S.E.2d 907
• Decision Date: 07 March 1997
• Docket Number: No. 189A95,189A95
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Thomas M. LARRY.

Page 907

481 S.E.2d 907

345 N.C. 497

STATE of North Carolina v. Thomas M. LARRY.

No. 189A95.

Supreme Court of North Carolina.

March 7, 1997.

Michael F. Easley, Attorney General by William B. Crumpler, Assistant Attorney General, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Assistant Appellate Defender, Durham, for defendant-appellant.

ORR, Justice.

Defendant was found guilty of robbery with a firearm and of the first-degree murder of Robert Buitrago on the basis of malice, premeditation, and deliberation and under the felony murder rule. The evidence at trial tended to show that on 15 January 1994, at approximately 9:30 p.m., defendant robbed a Food Lion grocery store in Winston-Salem. Cynthia Pennell, a Food Lion employee who had access to the safe, saw defendant standing in the front part of the store and asked if she could help him. He said that she could open the safe for him and that if she did not, she was a dead woman. He pointed a small black revolver at her. Pennell went to the safe and opened it. Defendant took at least $1,700 from the safe and put it in a box. He put the box under his arm and went outside. Throughout the robbery, he pointed the gun at others in the store, telling them not to move.

The murder victim, Robert Buitrago, an off-duty police officer, was a customer waiting in line at a register when the robbery occurred. One witness, Chastity Adams, saw defendant point the gun at Buitrago and say, "If you move, you're dead." The cashier for Buitrago's line had her back to defendant but heard him say, "Don't move or I'll kill you." Defendant ran from the store, and Buitrago chased him. When Buitrago caught up with defendant outside the store, near the front doors, a struggle ensued, and defendant fatally shot Buitrago with the handgun. Some witnesses said there was one shot, and some said there were two or more shots. Buitrago died from a single gunshot wound to the chest. Defendant fled on foot.

After witnesses identified defendant as the perpetrator, police obtained arrest warrants and subsequently found defendant hiding in a residence in Winston-Salem. Patrick Huey of the Forsyth County Sheriff's Department testified that he overheard defendant making a statement during a phone conversation from the Forsyth County jail, after his arrest. Huey testified that defendant told the person on the other end that "when they were brought in that they would be kept separate inside the jail and for them not to tell them anything, that he wasn't going to, and that they would not find the weapon; that he was the only one [who] knew where it was."

At the sentencing proceeding, the State presented evidence that defendant previously had been convicted once for common law robbery and three times for armed robbery. The jury found as four separate aggravating circumstances that defendant previously had been convicted of a violent felony. The jury also found as an aggravating circumstance that the murder was committed while defendant was engaged in the commission of a robbery. The jury found the statutory mitigating circumstances that the murder was committed while defendant was mentally or emotionally disturbed and that defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. The jury also found five nonstatutory mitigating circumstances as well as the catchall mitigating

circumstance. However, the jury recommended a sentence of death. The court sentenced defendant to death for the first-degree murder conviction and to a consecutive term of forty years' imprisonment for the armed robbery conviction. Defendant appealed to this Court and brings forth the following assignments of error for our review.

JURY SELECTION AND PRETRIAL

I.

Defendant contends that the trial court committed prejudicial error during its preselection instruction to the jury. We disagree. Over defendant's objection, the court instructed prospective jurors that "[i]f the jury finds beyond a reasonable doubt the existence of all facts necessary to impose the death penalty, the law of North Carolina requires that the juror vote to recommend that the defendant be sentenced to death." Defendant argues that this instruction improperly ignored the highly subjective nature of the capital sentencing process. However, we cannot find that defendant could have been prejudiced by the instruction. The judge emphasized to the jury that the instruction contained general information about the proceedings, and he explained that after the presentation of evidence, the court would give the jury the full instructions that were relevant. A review of the transcript reveals that the court gave full and proper instructions at the sentencing proceeding. This assignment of error is overruled.

II.

Defendant next contends that the trial court erred in sustaining the State's objection to two questions posed by defendant during jury selection. We disagree.

"The primary goal of the jury selection process is to ensure selection of a jury comprised only of persons who will render a fair and impartial verdict." State v. Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 731 (1992). Pursuant to N.C.G.S. § 15A-1214(c), counsel may question prospective jurors concerning their fitness or competency to serve as jurors to determine whether there is a basis to challenge for cause or whether to exercise a peremptory challenge. N.C.G.S. § 15A-1214(c) (1988). The trial judge has broad discretion to regulate jury voir dire. State v. Lee, 335 N.C. 244, 268, 439 S.E.2d 547, 559, cert. denied, 513 U.S. 891 130 L.Ed.2d 162 (1994). "In order for a defendant to show reversible error in the trial court's regulation of jury selection, a defendant must show that the court abused its discretion and that he was prejudiced thereby." Id. The right to an adequate voir dire to identify unqualified jurors does not give rise to a constitutional violation unless the trial court's exercise of discretion in preventing a defendant from pursuing a relevant line of questioning renders the trial fundamentally unfair. Morgan v. Illinois, 504 U.S. 719, 730 n. 5 119 L.Ed.2d 492, 503 n. 5 (1992); Mu'Min v. Virginia, 500 U.S. 415, 425-26 114 L.Ed.2d 493, 506 (1991).

State v. Fullwood, 343 N.C. 725, 732-33, 472 S.E.2d 883, 886-87 (1996). The trial court may refuse to allow the defense to ask questions that are overly broad, incomplete, or hypothetical, or questions that attempt to "stake-out" a potential juror and cause him to pledge himself to a decision in advance of the evidence to be presented. See, e.g., State v. Davis, 340 N.C. 1, 23, 455 S.E.2d 627, 638, cert. denied, --- U.S. ----, 116 S.Ct. 136, 133 L.Ed.2d 83 (1995); State v. Jones, 339 N.C. 114, 134, 451 S.E.2d 826, 835 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 2634, 132 L.Ed.2d 873 (1995).

Defendant fails to show an abuse of discretion or prejudice. He does not argue that any juror was accepted to whom he had legal objections upon any ground. Defendant was allowed to ask other questions to achieve the same inquiry sought by both of the questions to which the court sustained the State's objection. See State v. Bishop, 343 N.C. 518, 534-35, 472 S.E.2d 842, 850 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 779, 136 L.Ed.2d 723 (1997). The first question occurred during the defense counsel's voir dire of prospective juror Robertson Q. .... If the defendant chose not to testify in this matter, would you hold it against him?

A. No, I would not.

Q. Would you think he were more likely guilty if he didn't take the witness stand?

MR. SAUNDERS: Objection.

THE COURT: Sustained.

Q. If he didn't take the witness stand, would you not afford him the presumption of innocence?

A. No, I would not.

Q. No, you wouldn't give him the presumption?

A. I mean yes, I would.

Q. You wouldn't hold it against him.

A. Right.

Defendant was clearly allowed to elicit the information sought from prospective juror Robertson. The second question at issue occurred during the defense counsel's voir dire of prospective juror Howard:

Q. .... If [defendant is] convicted of first degree murder, do you agree that--you agree that all first degree murders do not necessarily deserve the death penalty?

A. Yes.

Q. Would it be fair to say you would not automatically vote for the death penalty if the defendant were convicted of first degree murder?

A. That's correct.

Q. You heard the prosecutor outline what they contend that the facts cover; that at the end of first phase of the case, if the defendant is found guilty of going in the Food Lion and robbing and leaving and, while leaving, shooting and killing a man and you found him guilty, would you think that the death penalty was the appropriate punishment?

MR. SAUNDERS: Objection.

THE COURT: Sustained.

Q. Would you automatically vote for the death penalty under that set of facts?

MR. SAUNDERS: Objection.

Q. Would you be willing to listen to other evidence after you found the defendant guilty of punishment [sic]?

A. Yes.

Q. Would you [be] able to consider evidence offered, mitigating evidence offered for the defendant?

A. Yes.

Q. You understand mitigation tends to make life sentence more appropriate?

A. Yes.

Again, defendant was clearly allowed to elicit the information sought from prospective juror Howard. This assignment of error is overruled.

III.

Defendant next contends that the trial court erred in denying defendant's motion for individual voir dire of prospective jurors. Individual voir dire of prospective jurors in capital cases is addressed by N.C.G.S. § 15A-1214(j), which provides: "In 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." The trial court's decision to deny individual voir dire of prospective jurors will not be...