State v. Murray, 11A83

• Decision Date: 03 April 1984
• Docket Number: No. 11A83,11A83
• Citation: 310 N.C. 541,313 S.E.2d 523
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Henry MURRAY.

Page 523

313 S.E.2d 523

310 N.C. 541

STATE of North Carolina v. James Henry MURRAY.

No. 11A83.

Supreme Court of North Carolina.

April 3, 1984.

Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender by Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

Through several assignments of error, the defendant contends the trial court committed error in a cautionary instruction to the jury and in allowing certain cross examination and argument by the State. The defendant also argues that his convictions for both armed robbery and felonious larceny violated his constitutional right to be free from double jeopardy. We find no merit in these assignments of error.

The defendant's convictions arose out of events which occurred on December 28, 1981 and which resulted in the death on the following day of Kauno Lehto, aged 70, owner of the Wilmington Bonded Warehouse. Four men were indicted for the offense and two defendants, Ricky Benbow and Lorenzo Thomas agreed to testify at the trial of the defendant. In exchange for his testimony, Benbow was allowed to plead guilty to second degree murder. See State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983) for a more detailed recitation of the facts surrounding the case.

At the trial of the defendant, the evidence for the State tended to show that the defendant and three other men, Benbow, Thomas and Freddy Stokes, met in the late afternoon of December 28, 1981 and agreed to go to the Wilmington Bonded Warehouse to rob Lehto, the warehouse owner. The evidence tended to show that the men went to the warehouse on foot just as darkness fell and that Stokes and the defendant carried sticks. When they arrived at the warehouse, Stokes and the defendant positioned themselves on either side of the ramp which led into the office portion of the warehouse, while the other two men served as lookouts. Lehto emerged from the office between 6:05 and 6:15 p.m. on December 28. Both witnesses testified that Stokes took Lehto down the ramp and, along with the defendant, appeared to struggle with Lehto and to go through his pockets. Benbow testified that, when Stokes came down the ramp leading into the office, Stokes had the keys to Lehto's car which was parked at the foot of the ramp. The defendant, Stokes and Benbow got in the car and drove it away. Thomas testified that Stokes gave him marijuana for his participation in the robbery and that Stokes told the other two men that they would split the money.

Friends of Lehto's family found Lehto on the ramp of his warehouse at about 8:15 p.m. on December 28 after he failed to appear at home at his usual time. When they found him, Lehto's face was beaten beyond recognition and covered with blood. Lehto died the following morning in a hospital. An autopsy revealed that he had died of head injuries and brain swelling caused by blows with a blunt or semi-sharp object.

The defendant's evidence tended to show that, on December 28, 1981, he lived with his mother in Wilmington. He had been released from prison on December 17, 1981 after serving eight months of a two year prison sentence for assault. The defendant Murray denied that he saw Stokes, Benbow and Thomas on the night of December 28, 1981. Murray also denied beating or robbing Kauno Lehto or stealing his car on that night. Murray and alibi witnesses testified that from mid-afternoon until about 7:00 or 7:30 p.m. on December 28 the defendant was upstairs in his mother's home. He testified that after arriving at the home in mid-afternoon he did not leave the house again that day.

In his first assignment of error, the defendant contends that the procedure of "death qualifying" the jury in the guilt-innocence phase of his trial deprived him of his right to a fair trial. Although the defendant received a life sentence in this case, his trial began as a capital case and the jury was selected pursuant to G.S. 15A-2000(a)(2). The defendant maintains that the procedure of death qualifying a jury results in a guilt prone jury. We have found this argument to be without merit on numerous occasions, and we now reaffirm our previous holdings. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), reh'g denied, --- U.S. ----, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); accord Hutchins v. Woodard, 830 F.2d 953 (4th Cir. 1984); Barfield v. Harris, 540 F.Supp. 451 (E.D.N.C.1982), aff'd 719 F.2d 58 (4th Cir.1983). Contra Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984).

The defendant next assigns as error the trial court's instructions before the testimony of Richard Benbow, one of the two accomplice witnesses who linked the defendant to the crimes. Immediately prior to Benbow's testimony the court instructed the jury as follows:

Now, members of the jury, the court instructs you that the testimony of this witness, Richard Benbow, is given under an agreement with the prosecution whereby the witness has agreed to testify for the State in exchange for a charge reduction. If you find that the witness testified in whole or in part for this reason, you should examine every part of his testimony with great care and great caution in deciding whether or not to believe him.

The defendant contends the court should have instructed the jury that Benbow was in fact testifying because of a plea agreement and that the jury was required to consider his testimony with care. In support of his argument, he cites State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) and State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976) in which this Court held that instructions at the close of the evidence which directed the jury to consider the witness's testimony with caution only if it found the witness to be an accomplice were erroneous.

The defendant did not object to this instruction at trial. As we have stated on numerous occasions, failure to object to errors at trial constitutes a waiver of the right to assert the errors on appeal. State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983). In State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) we adopted the "plain error rule" with regard to situations in which no objection or exception is made at trial to jury instructions. In State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983), we adopted the plain error rule for the situations in which no objection or exception is made to evidence admitted. Absent an exception preserved by objection or which by rule of law is deemed preserved, our review is limited to determining whether plain error was committed at trial. We have stated that plain error will be found

in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has " 'resulted in a miscarriage of justice or in the denial to appellant of a fair trial' " or the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can fairly be said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."

State v. Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McGaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982) (emphasis original)).

Assuming for the sake of argument that the trial judge's cautionary instruction was error in this case, the mistake did not reach the level of plain error. The instruction was not required at all prior to Benbow's testimony. Unless a witness has been formally granted immunity there is no statutory requirement for any such cautionary instruction prior to testimony. State v. Bare, 309 N.C. 122, 305 S.E.2d 513 (1983). Furthermore, in Hardy and Harris, cases cited by the defendant, we found similar instructions to be harmless. We note, too, that the trial court in its charge to the jury at the close of all of the evidence instructed that Thomas and Benbow were accomplices, and that the jury "should examine every part of the testimony of each of these witnesses with the greatest care and caution in deciding whether or not to believe him." The jury was clearly instructed to consider Benbow's testimony carefully in light of his possible bias. While we detect no error, any possible error certainly did not rise to the level of having "a probable impact on the jury's finding that the defendant was guilty." State v. Odom, 307 N.C. at 660, 300 S.E.2d at 378. This assignment of error is rejected.

The defendant next contends that he was twice placed in jeopardy for the same offense in violation of his rights under the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 19 of the Constitution of North Carolina. He claims that because he was charged and tried for both the armed robbery of Lehto by taking his wallet and keys and the felonious larceny of Lehto's automobile, he was twice placed in jeopardy for the same offense.

The protections against double jeopardy provide that a person may not be unfairly subjected to multiple trials for the same offense. Nor may a defendant be punished twice for the same statutory offense. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), reh'g denied, --- U.S. ----, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983). A person's right to be free from double jeopardy is violated not only when he is tried and convicted twice for the same offense but also when one is charged and convicted for two offenses, one of which is a lesser included offense of the other. See State v. Walden, 306...