State v. Miller

• Decision Date: 03 March 1995
• Docket Number: No. 67A93,67A93
• Citation: 455 S.E.2d 137,339 N.C. 663
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. General Sam MILLER.

Page 137

455 S.E.2d 137

339 N.C. 663

STATE of North Carolina v. General Sam MILLER.

No. 67A93.

Supreme Court of North Carolina.

March 3, 1995.

Michael F. Easley, Atty. Gen. by William N. Farrell, Jr., and William P. Hart, Special Deputy Attys. Gen., for State.

Henderson Hill, Director, North Carolina Resource Center by Marshall L. Dayan, Sr. Staff Atty., Durham, and Bruce T. Cunningham, Jr., Southern Pines, for defendant-appellant.

WHICHARD, Justice.

In 1986 defendant was convicted of the first-degree murder of Earl Allen, the owner and operator of City Jewelers in Robeson County, and sentenced to death. On defendant's first appeal, we ordered a new trial. See State v. Hucks & Miller, 323 N.C. 574, 374 S.E.2d 240 (1988). At his second trial in 1993, defendant again was convicted of the first-degree murder of Earl Allen and sentenced to death. He appeals from this second conviction and sentence. We find no prejudicial error in the guilt/innocence and sentencing phases, and we conclude that the sentence of death is not disproportionate.

The State's evidence tended to show that defendant arrived in Fayetteville, North Carolina, on 29 September 1985 in a stolen car. He ran out of money and on 4 October began looking for a place to rob, armed with a .32-caliber pistol and accompanied by Kenneth Hucks, his codefendant at the first trial. On 5 October defendant spotted Allen's jewelry store in St. Pauls and stated, "there is our easy money." At approximately 3:45 p.m. defendant and Hucks parked the car and entered the store. Defendant demanded the money from Allen's cash register. When Allen refused, defendant raised his pistol and fired one shot into Allen's forehead. Defendant later told an investigator that he shot Allen for trying "to stop him from getting the money." After Allen fell to the floor, defendant removed money, a wallet, and a set of keys from Allen's pockets. Hucks stole some watches as defendant took money from the cash register. On their way out, defendant pointed a gun at, but did not shoot, a person entering the store. Allen died six days later, without regaining consciousness, as a result of the gunshot wound to his head.

Defendant and Hucks divided the proceeds of the robbery on their way back to Fayetteville. Defendant used his share--$800.00--to buy drugs. Police officers apprehended defendant, after a high-speed chase which ended in a multiple-car accident, early in the morning on 6 October. They recovered a gun and some watches from the stolen car driven by defendant. A ballistics expert from the State Bureau of Investigation testified Defendant was transported by ambulance from the scene of the accident to Southeastern General Hospital, accompanied by then-Assistant Chief of Police Tommy Hagens. Chief of Police James Sanderson, SBI Agent Lee Sampson, and Hagans interrogated defendant in the hospital and continued the questioning in the Robeson County Sheriff's Office after defendant was released from the hospital. At the Sheriff's Office, defendant waived his Miranda rights and then confessed that he shot Allen; Agent Sampson recounted defendant's confession at trial. After giving his statement, defendant helped the police locate Hucks and provided information used to obtain a search warrant. Police recovered much of the property stolen from City Jewelers as a result of defendant's assistance.

that the bullet removed from Allen's brain matched the gun found in the car.

Defendant introduced no evidence during the guilt/innocence phase. The jury returned a verdict of guilty under the theory of premeditation and deliberation as well as the felony murder rule.

During the sentencing phase, the State introduced evidence that defendant, armed with a pistol, had robbed the Quality Inn in Fayetteville on 3 October 1985 and Martin's Quick Service in Fayetteville on 5 October 1985. The State also introduced evidence that defendant had been convicted of third-degree robbery in Connecticut in July 1982.

Defendant offered evidence at sentencing tending to show that while in the emergency room at Southeastern General he admitted to drug abuse and that a hospital nurse observed needle tracks on both of defendant's arms. Additionally, defendant's hospital record shows that on the afternoon of 6 October he requested medicine to treat what he called drug withdrawal.

Defendant's social worker, Beth McAllister, testified about her work with defendant. She stated that defendant remained close to his family in Connecticut despite his incarceration and that he nurtured and supported his siblings. Defendant began smoking marijuana at age twelve or thirteen and began to use harder drugs at age fourteen after his father died. Defendant had developed a routine in jail which included reading the newspaper and the Bible, educating himself, and praying.

Defendant's sister, June Lewis, testified that defendant was devastated by their father's death and that he did whatever he could to help her. For example, he talked to her sons about their behavior, drove her to work when necessary, and took care of her family when she was in the hospital for back surgery. Defendant's nephew, Walter Miller, Jr., testified that he talked to defendant about many things, including getting good grades and staying in school.

Elder Thomas Dockery, defendant's minister since 1986, testified that defendant had embraced Christianity and made an effort to turn his life around. He testified about defendant's good relationship with officers at Central Prison and about improvements in his speech and personal grooming.

Finally, Dr. George Cliette, a psychologist, testified that he performed several tests on defendant. The results revealed that defendant's intelligence is below average. He reads at a twelfth grade level but has deficient math and spelling skills. Personality tests showed that defendant acts impulsively, has difficulty processing information, and has a moderately high addictive personality.

The jury found all three aggravating circumstances submitted: (1) that defendant had previously been convicted of a felony involving the use or threat of violence; (2) that the murder was committed for pecuniary gain; and (3) that the murder was part of a course of conduct including the commission of other crimes of violence against other persons. The trial court submitted one statutory and thirteen nonstatutory mitigating circumstances. The jury found the statutory circumstance that defendant aided in the apprehension of another capital felon and ten of the nonstatutory circumstances. The jury then recommended a sentence of death, and the court sentenced defendant accordingly.

PRETRIAL PHASE

Defendant first assigns as error the trial court's denial of his motion to quash his In Robinson, we implicitly assumed that motions like defendant's, known as Cofield motions, are motions to dismiss an indictment based on a challenge to the array under N.C.G.S. § 15A-955(1) because they in effect challenge the grand jury which indicted the defendant. Robinson, 327 N.C. at 361, 395 S.E.2d at 411. We now expressly adopt that position. N.C.G.S. § 15A-952 provides in pertinent part that motions to dismiss under N.C.G.S. § 15A-955 "must be made within the time limitations stated in subsection (c) unless the court permits filing at a later time." N.C.G.S. § 15A-952(b)(4) (Supp.1994). Subsection (c) of that statute provides:

murder indictment on the basis of racial discrimination in the selection of the grand jury foreman. Such discrimination denies a black defendant the protections of Article I, Sections 19 and 26 of the North Carolina Constitution. State v. Pigott, 331 N.C. 199, 415 S.E.2d 555 (1992); State v. Robinson, 327 N.C. 346, 361, 395 S.E.2d 402, 411 (1990); State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987). The trial court denied the motion, which was filed on the first day of trial, on the grounds that it was time-barred and that defendant presented no valid reason to waive the time bar.

Unless otherwise provided, the motions listed in subsection (b) must be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is to be held at the session for which trial is calendared, the motions must be filed on [sic] or before five o'clock P.M. on the Wednesday prior to the session when trial of the case begins.

Defendant was arraigned for the second time on 17 January 1989, well before the session of court for which his trial was calendared. Thus a motion to quash his indictment should have been filed on or before 17 January 1989. Unless defendant presented the trial court good reason to grant relief from the statutory time limitation, he waived his Cofield rights. N.C.G.S. § 15A-952(e). Defendant contends his motion should not have been time-barred because his current counsel did not represent him at the time of his arraignment and should not be bound by waivers by prior counsel. He also argues he had no notice that Cofield motions constituted challenges to an array under N.C.G.S. § 15A-955 until this Court decided Robinson. Therefore, he contends, his inaction should not constitute a waiver. We disagree.

The trial court did not bind new defense counsel by previous counsel's waiver. The court's ruling was based on counsel's failure to file the motion until the first day of trial. Defendant's new counsel began to represent him on 3 July 1989, seven months after his second arraignment. Counsel could have filed a Cofield motion at that time and argued then for relief from the time bar on the grounds that he should not be bound by an error of prior counsel. Defense counsel also could have filed the motion on 8 October 1992 when he argued a motion for change of venue. Finally, he could have filed the motion as soon as Robinson was published, as that case provided clear notice that N.C.G.S. § 15A-952(c) applied to Cofield motions. Instead, he...