State v. Moseley

• Decision Date: 03 November 1994
• Docket Number: No. 124A93,124A93
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Carl Stephen MOSELEY.

Page 412

449 S.E.2d 412

338 N.C. 1

STATE of North Carolina v. Carl Stephen MOSELEY.

No. 124A93.

Supreme Court of North Carolina.

Nov. 3, 1994.

Michael F. Easley, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., for the State.

James R. Parish, Fayetteville, for defendant-appellant.

MEYER, Justice.

Defendant was tried for the first-degree murder of Dorothy Louise Woods Johnson. The State's evidence showed that Ms. Johnson went to the SRO, a country-western dance club in Winston- Salem, on the evening of 12 April 1991. Ms. Johnson lived with her parents, and when she did not return home, they called the Sheriff's Department and reported Ms. Johnson missing. Defendant was also at the SRO on 12 April 1991, and he and Ms. Johnson had talked and danced together during the evening. Ms. Johnson was last seen alive at the SRO Club.

Ms. Johnson's naked body was found the next day, 13 April 1991, lying beside a secluded cul-de-sac in a new development known as Friendship Forest, in a rural area of Stokes County. She had been savagely beaten with a blunt force object, cut with a sharp object, sexually assaulted with a blunt instrument, raped, and manually and ligaturally strangled.

The jury found defendant guilty of first-degree murder, first-degree sexual assault, and first-degree rape. After a capital sentencing proceeding, the jury recommended that defendant receive the death penalty for the murder conviction, and Judge McHugh sentenced defendant accordingly. He additionally sentenced defendant to consecutive terms of life imprisonment for the convictions for first-degree sexual assault and first-degree rape.

Additional facts will be presented as necessary for the discussion of the issues.

JURY SELECTION AND PRETRIAL MOTIONS ISSUES

In his first assignment of error, defendant contends that the trial court erroneously denied his motion for a change of venue. Defendant filed a pretrial motion and a supplemental motion at the close of jury selection for a change of venue, arguing that he could not receive a fair trial in Stokes County, in violation of his state and federal constitutional rights, because of the extensive media coverage his case had received. For the reasons discussed herein, we find this assignment of error to be without merit.

In support of his initial pretrial motion, defendant presented affidavits from two local television stations detailing the number of broadcasts in the four months prior to this trial in which they had coverage of either this case or of defendant's conviction of first-degree murder that occurred in neighboring

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Forsyth County. Defendant also introduced into evidence copies of numerous newspaper articles from the Winston-Salem Journal and other area papers dealing with this case and defendant's earlier conviction in Forsyth County. Defendant argued that the underlying facts of the Forsyth County [338 N.C. 16] case would likely be introduced into evidence by the prosecution in this case under North Carolina Evidence Rule 404(b), N.C.G.S. § 8C-1, Rule 404(b) (1992), and that the extensive media coverage of the earlier Forsyth County trial would make a fair trial in this case impossible in Stokes County. The State presented testimony of a private attorney in Stokes County, Mike Bennett; Stokes County Sheriff Mike Joyce; Stokes County Clerk of Superior Court Wic Southern; and Stokes County Sheriff Deputy James Joyce to the effect that in each witness' opinion, defendant could receive a fair and impartial trial in Stokes County. The trial court denied defendant's pretrial motion.

The statute pertaining to change of venue motions provides:

If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:

(1) Transfer the proceeding to another county in the prosecutorial district as defined in G.S. 7A-60 or to another county in an adjoining prosecutorial district as defined in G.S. 7A-60, or

(2) Order a special venire under the terms of G.S. 15A-958.

The procedure for change of venue is in accordance with the provisions of Article 3 of this Chapter, Venue.

N.C.G.S. § 15A-957 (1988). In State v. Yelverton, 334 N.C. 532, 434 S.E.2d 183 (1993), this Court stated:

The test for determining whether venue should be changed is whether "it is reasonably likely that prospective jurors would base their decision in the case upon pre-trial 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, 255, 307 S.E.2d 339, 347 (1983).] The burden of proving the existence of a reasonable likelihood that he cannot receive a fair trial because of prejudice against him in the county in which he is to be tried rests upon the defendant. State v. Madric, 328 N.C. 223, 226, 400 S.E.2d 31, 33 (1991). "In deciding whether a defendant has met his burden of showing prejudice, it is relevant to consider that the chosen jurors stated that they could ignore their prior knowledge or earlier formed opinions and decide the case solely on the evidence presented at trial." Jerrett, 309 N.C. at 255, 307 S.E.2d at 348. The determination of whether a defendant has carried his burden of showing that pre-trial publicity precluded him from receiving a fair trial rests within the trial court's sound discretion. Madric, 328 N.C. at 226, 400 S.E.2d at 33. The trial court has discretion, however, only in exercising its sound judgment as to the weight and credibility of the information before it, including evidence of such publicity and jurors' averments that they were ignorant of it or could be objective in spite of it. When the trial court concludes, based upon its sound assessment of the information before it, that the defendant has made a sufficient showing of prejudice, it must grant defendant's motion as a matter of law. See State v. Abbott, 320 N.C. 475, 478, 358 S.E.2d 365, 368 (1987).

Id. at 539-40, 434 S.E.2d at 187.

During jury selection, the trial court permitted the individual voir dire of prospective jurors on the media exposure issue. Almost all of the potential jurors indicated they had been exposed to some pretrial publicity in this matter. In denying defendant's supplemental motion for a change of venue, the trial court made, inter alia, the following findings of fact:

The Court finds that none of the jurors presently seated as jurors or alternate jurors are subject to bias or pretrial publicity, and that each and every one of the jurors seated in and each and every one of the jurors examined in this cause, save and except a single juror that [sic] was excused for pretrial publicity, expressed a clear and

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abiding certainty that the effect of pretrial publicity or notice could be stricken from his consideration; and that the jurors each expressed a clear and abiding conviction that the juror could base his verdict solely upon the evidence presented during the trial and upon the law as instructed by the Court.

After reviewing the two affidavits submitted by defendant in the record on appeal, the newspaper articles presented by defendant to the trial court, the testimony of the State's witnesses, and the transcript of the jury selection voir dire, we are satisfied that the trial court did not err in denying defendant's motion for a change of venue. The affidavits submitted in the record on appeal indicate only that one television station covered developments in defendant's Forsyth County trial approximately fifty times and that the other station covered developments eleven times. The affidavits do not suggest in any way that the televised coverage of defendant's cases was inflammatory. While defendant has presented numerous newspaper accounts of the cases against him, we note that "[t]his Court has consistently held that factual news accounts regarding the commission of a crime and the pretrial proceedings do not of themselves warrant a change of venue." State v. Gardner, 311 N.C. 489, 498, 319 S.E.2d 591, 598 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369 (1985). The bulk of the articles submitted by defendant were factually based and expressed no opinions regarding defendant's guilt or innocence. Defendant included among the newspaper articles two excerpts from the "Readers Speak Up" page of the Surry Scene, dated 13 October 1992, and 20 October 1992. In those two excerpts, ten anonymous callers had editorialized about the Forsyth County case. However, it cannot be said that these opinions prejudiced defendant in any way. Further, the State put on credible evidence in rebuttal of defendant's claims of prejudicial media coverage.

This Court has noted that the potential jurors' responses to questions on voir dire are the best evidence of whether pretrial publicity was prejudicial or inflammatory. State v. Richardson, 308 N.C. 470, 480, 302 S.E.2d 799, 805 (1983). If each juror states unequivocally that he can set aside what he has heard previously about a defendant's guilt and arrive at a determination based solely on the evidence presented at trial, the trial court does not err in refusing to grant a change of venue. State v. Moore, 335 N.C. 567, 586, 440 S.E.2d 797, 808, cert. denied, --- U.S. ----, 115 S.Ct. 253, 130 L.Ed.2d 174 (1994). In this case, to assure a fair and impartial venire, the trial court permitted individual voir dire of prospective jurors to discuss pretrial publicity. The transcript demonstrates that the twelve jurors and two alternates who ultimately heard defendant's case were thoroughly questioned on their exposure to pretrial publicity. The transcript further shows that each juror unequivocally stated that he or she could put aside anything read, seen, or heard about defendant and that he or she would decide defendant's case solely...