State v. Madric, No. 108A89

• Decision Date: 07 February 1991
• Docket Number: No. 108A89
• Citation: 400 S.E.2d 31,328 N.C. 223
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John Lavelle MADRIC.

Page 31

400 S.E.2d 31

328 N.C. 223

STATE of North Carolina v. John Lavelle MADRIC.

No. 108A89.

Supreme Court of North Carolina.

Feb. 7, 1991.

Appeal of right by the defendant, pursuant to N.C.G.S. § 7A-27(a), from judgment imposing a sentence of life imprisonment for first degree murder, entered by Beaty, J. on 29 September 1988 in the Superior Court, Rockingham County. On 14 March 1989, the Supreme Court allowed the defendant's motion to bypass the Court of Appeals on his appeal of additional judgments imposing sentences of less than life imprisonment. Heard in the Supreme Court on 8 October 1990.

Lacy H. Thornburg, Atty. Gen. by Debra C. Graves, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by M. Patricia Devine, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant was indicted on 22 February 1988 for first degree murder, first degree kidnapping, and robbery with a dangerous weapon. The jury returned verdicts finding the defendant guilty of all offenses as charged. After a sentencing proceeding under N.C.G.S. § 15A-2000, the jury recommended a life sentence for the first degree murder conviction. The trial court sentenced the defendant to life imprisonment for the murder and to consecutive sentences of 20 and 40 years imprisonment, respectively, for the kidnapping and robbery convictions. The defendant appealed the judgment imposing a sentence of life imprisonment to this Court as a matter of right. On 14 March 1989, this Court allowed his motion to bypass the Court of Appeals on his appeals from the kidnapping and robbery convictions.

On appeal, the defendant brings forward three assignments of error. First, he contends the trial court abused its discretion by denying his motion for change of venue. Second, he argues that the trial court erred in denying his motions to suppress evidence seized from his mobile home and a statement he gave to law enforcement officers. Finally, he maintains that the trial court erred by entering judgments against him on both the first degree murder and the kidnapping convictions. We conclude that the defendant's assignments of error are without merit.

The State offered evidence tending to show that at 8:30 p.m. on 4 February 1988, Sadie Booker, a pregnant mother of two, left home to run errands at the local shopping mall. Early the next morning, a deputy sheriff found Booker's car straddling a roadside ditch. The car was covered with frost and the letters "KKK" were drawn on the windshield, the back windows, the driver's side windows and the back seat. There were blood stains on the back seat, and a trail of blood led from the car into the defendant's driveway on the other side of the road. The deputy sheriff and two detectives followed the trail of blood and found Booker's naked body in the woods beside the driveway. The officers noted that the body bore stab wounds around the neck and chest. The trail of blood led to the defendant's door, and there were blood stains on the door step, door knob and screen door.

The officers knocked on the door, and when the defendant opened the door, the officers observed fresh scratch marks on the left side of his face. With the defendant's consent, the officers searched his mobile home. In the defendant's wood-burning stove, they found small pieces of blue cloth, a finger nail file, lipstick containers, perfume sample bottles and metal remnants of a change purse and pocketbook. The ashes also contained metal snaps of a type used on brassieres and ladies clothing.

The defendant testified that he was looking for a ride home from McDonald's around 9:30 p.m. on 4 February. Three men gave him a ride, during which he fought with one of them and his face was scratched. After the fight, a police officer gave him a ride to a bridge near his home. While walking home from the bridge, he saw a car in the ditch. He examined the car, saw a purse on the floor board, picked it up and took it to his home. Later, he returned and took the battery from the car. The battery was too small to power his car, so he tossed it down a hill. He returned to his home, threw contents of the purse into his fireplace and went to bed. He denied killing Sadie Booker.

Other pertinent facts are hereinafter set forth.

The defendant first assigns as error the trial court's denials of his initial and renewed motions for change of venue. Prior to trial, the defendant filed a motion under N.C.G.S. § 15A-957 seeking a change of venue on the ground that existing prejudice against him in Rockingham County was so great that he could not receive a fair and impartial trial there. The trial court denied the defendant's motion at the close of a pretrial hearing and denied the motion again when the defendant renewed it after the jury had been selected, after three of the State's witnesses had testified, and at the close of the State's case. On appeal, the defendant argues that the trial court's rulings on his motion deprived him of his constitutional right to a fair trial.

The burden of proof in a hearing on a motion for a change of venue due to existing prejudice in the county in which a prosecution is pending is upon the defendant. State v. Abbott, 320 N.C. 475, 358 S.E.2d 365 (1987); State v. Gardner, 311 N.C. 489, 319 S.E.2d 591 (1984). In order to prevail, the defendant must show that there is a reasonable likelihood that due to such prejudice he will not receive a fair trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); State v. Hunt, 325 N.C. 187, 381 S.E.2d 453 (1989). The determination of whether the defendant has carried this burden rests within the sound discretion of the trial court. Id. Absent a showing of abuse of discretion, its ruling will not be overturned on appeal. Id.; State v. Gardner, 311 N.C. at 497, 319 S.E.2d at 598.

During the pretrial hearing on his motion for change of venue, the defendant put on evidence concerning the demographics of Rockingham County, local newspaper articles concerning the investigation of the crime for which the defendant was indicted in this case, and newspaper circulation figures. The defendant also sought to introduce testimony of one homemaker and several attorneys practicing in Rockingham County concerning their opinions as to whether the defendant could receive a fair trial there. Although the trial court permitted testimony by these witnesses concerning any conversations or comments they had heard about the defendant's case, the witnesses' statements of their opinions on the ultimate issue to be decided by the trial court--whether the defendant could receive a fair trial in Rockingham County--were not accepted in evidence and were allowed for record purposes only.

The defendant argues, inter alia, under this assignment of error that the trial court erred in excluding opinion testimony concerning whether he could receive a fair trial in Rockingham County. Assuming arguendo that such opinion testimony was admissible under N.C.G.S. § 8C-1, Rule 701 or Rule 704 as evidence helpful to the trial court as the fact finder on the ultimate issue, we conclude that any error in excluding it was harmless. In this regard, we note that the issue of admissibility of such opinion testimony must be decided as a question of statutory construction controlled by the North Carolina Rules of Evidence, N.C.G.S. § 8C-1 (1988). Therefore, the burden is upon the defendant to show that he was prejudiced by any error in the trial court's exclusion of such evidence. N.C.G.S. § 15A-1443(a) (1988).

The issue before the trial court here was whether it was "reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed." State v. Jerrett, 309 N.C. 239, 254-55, 307 S.E.2d 339, 347 (1983). Only in the most extraordinary cases can an appellate court determine solely upon evidence adduced prior to the actual commencement of jury selection that a trial court has abused its discretion by denying a motion for change of venue due to existing prejudice against the defendant. E.g., Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Although opinion testimony of members of the community in which the defendant is to be tried as to whether the defendant can receive a fair trial may, in proper circumstances, be relevant and admissible, such evidence is not determinative on the question. In cases such as this in which a jury has been selected and the trial court has thereafter considered the defendant's renewed motion for change of venue, any opinion testimony given during a pretrial motion hearing as to whether the defendant can receive a fair trial will be of little value. In such cases, the trial court will have before it questions put to the actual jurors in the case and their answers--better and more reliable evidence on the question. In those cases, at least, any error by the trial court in excluding such opinion testimony during an earlier pretrial motion hearing will be held harmless absent a clear showing to the contrary by the defendant. We conclude that the defendant has failed to make such a showing and, therefore, we hold that any error by the trial court in excluding the opinion testimony profferred during the pretrial hearing on the defendant's motion was harmless.

We turn next to the greater question raised by this assignment of error--whether the trial court abused its discretion by denying the defendant's motion for change of venue. The best and most reliable evidence as to whether existing community prejudice will prevent a fair trial can be drawn from prospective jurors' responses to questions during the jury selection process. State v. Richardson, 308 N.C. 470, 480, 302 S.E.2d 799, 805 (1983). "If an impartial jury actually...