State v. Nobles

• Decision Date: 25 June 1999
• Docket Number: No. 156A98.,156A98.
• Citation: 515 S.E.2d 885
• Parties: STATE of North Carolina v. Cornelius Alvin NOBLES.
• Court: North Carolina Supreme Court

515 S.E.2d 885

STATE of North Carolina v. Cornelius Alvin NOBLES.

No. 156A98.

Supreme Court of North Carolina.

June 25, 1999.

Michael F. Easley, Attorney General, by William P. Hart, Special Deputy Attorney General, and William B. Crumpler, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Janet Moore, Assistant Appellate Defender, Durham, for defendant-appellant.

PARKER, Justice.

Defendant Cornelius Alvin Nobles was indicted on 28 October 1996 for first-degree murder and four counts of discharging a firearm into occupied property. On 18 July 1997 defendant was indicted for three additional counts of discharging a firearm into occupied property. He was tried capitally and found guilty of first-degree murder on the basis of felony murder. He was also found guilty of six counts of discharging a firearm into occupied property. Following a capital sentencing proceeding, the jury recommended a sentence of death for the murder; and the trial court entered judgment accordingly. The trial court sentenced defendant to consecutive sentences of forty to fifty-seven months each for defendant's convictions of five counts of discharging a firearm into occupied property and arrested judgment for the conviction of the sixth count of discharging a firearm into occupied property because it was the predicate felony supporting the felony-murder conviction.

The State's evidence tended to show that on 28 August 1996 defendant shot and killed his wife, Ronita Nobles ("victim"). On 25 August 1996 defendant had been charged with assault on the victim; he was released on bond on 27 August 1996 but was to have no contact with the victim. On the evening of 28 August 1996, defendant was driving down Paul Ed Dail Road near Kenansville, North Carolina, in his Mercedes when he noticed his wife's Nissan pickup truck leaving the driveway of their house. Defendant stopped his car in the road and flashed his lights at the truck. He then got out of his car and shouted at the truck twice. The truck left the driveway and headed in defendant's direction. Defendant then took his gun out of his back pocket and began shooting at the truck. The driver's side of the truck hit defendant and ran over his foot, causing him to slam against the driver's side of the truck. The truck ran off the side of the road into a ditch.

As the truck was heading toward the ditch, Russell Brock was driving down Paul Ed Dail Road in the opposite direction of the victim's truck. Defendant returned to his car and proceeded to back up toward the truck. Defendant and Brock approached the truck at approximately the same moment. Defendant opened the driver's door and pulled the victim from the truck. Defendant told Brock that the victim was his wife and that he had shot her. Defendant then removed his two-year-old daughter from her car seat located in the passenger's seat; next, he removed his twin nine-month-old children, who were in car carriers, from the back seat of the truck. The children were unharmed.

Shortly thereafter members of the Duplin County Rescue Squad and the Duplin County Sheriff's Department arrived. The emergency medical technician found no signs of life in the victim at the murder scene. Seven bullet holes were found in the truck. Defendant was arrested at the scene.

Additional facts will be presented as needed to discuss specific issues.

JURY SELECTION ISSUES

In his first argument defendant contends that the trial court committed reversible error under the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution when it had unrecorded private communications with three prospective jurors. Defendant argues that the excusals violated his nonwaivable right to be present at every stage of his capital trial. He also contends that the excusals violated his right to a "true, complete, and accurate record of all statements from the bench and all other proceedings" pursuant to N.C.G.S. § 15A-1241(a).

The Confrontation Clause of the North Carolina Constitution guarantees the right of every accused to be present at every stage of his trial. N.C. Const. art. I, § 23; State v. Jones, 346 N.C. 704, 708-09, 487 S.E.2d 714, 717 (1997). Furthermore, defendant's right to be present at every stage of his capital trial is nonwaivable. State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990). When the trial court excludes defendant from its private communications with prospective jurors at the bench prior to excusing them, it has committed reversible error unless the State can prove that the error was harmless beyond a reasonable doubt. Id.

A review of the jury selection process reveals that following the trial court's hearing of hardship excuses, six prospective jurors were excused, and the remaining sixty-three prospective jurors were divided into five panels. Lester Tanner was assigned to panel IV; Marjorie Gilbert was assigned to panel V; and David Mixon, when he appeared in the courtroom two days later, was also assigned to panel V. During the morning of the second day of jury selection, the following exchange transpired:

THE COURT: All right.... [W]e're going to take about ten minutes. Be at ease, do what you need to do and be back here at quarter until.

The record will reflect—what was the gentleman's name that we excused?

COURT REPORTER: Tanner.

THE COURT: Because he was over sixty-five.

MS. THOMAS [prosecutor]: Was it Benny Peterson.

THE CLERK: Benny Peterson's the one we had this morning.

COURT REPORTER: I thought it was Tanner.

MS. THOMAS: Yeah, Tanner. Lester Tanner.

THE COURT: And, I'd advised the defense counsel that [sic] after we had returned and probably before we came into session.

As for prospective jurors Gilbert and Mixon, apart from being sworn in and assigned to panel V, there is no further mention of them in the record; and Gilbert and Mixon were not on the panel when the roll was called for the voir dire of panel V.

Although the record is not clear whether Judge Lanier actually engaged in a private conversation with prospective juror Tanner prior to his excusal or whether defendant and his counsel were excluded from such conversation, for purposes of this appeal, we will assume that Judge Lanier did in fact violate defendant's nonwaivable constitutional right to be present at every stage of his trial. However, this error was harmless beyond a reasonable doubt.

In State v. Adams, 335 N.C. 401, 408, 439 S.E.2d 760, 763 (1994), the trial court heard excuses from three prospective jurors off the record and ultimately excused them. In performing a harmless error analysis, this Court held that since "the transcript reveal[ed] that the substance of the unrecorded communications with the three jurors was adequately reconstructed by the trial judge[,] ... the defendant's absence from the conference was harmless." Id. at 409, 439 S.E.2d at 763. Similarly, in State v. Lee, 335 N.C. 244, 262-63, 439 S.E.2d 547, 555-56, cert. denied, 513 U.S. 891, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994), this Court held that it was harmless error when the record revealed both the substance of private communications between the trial court and prospective jurors and that there were proper grounds for the excusals. See also State v. Hartman, 344 N.C. 445, 456, 476 S.E.2d 328, 334 (1996)

(concluding that defendant's absence from the trial court's private exchange with a prospective juror was harmless beyond a reasonable doubt since the record indicated that she was properly excused based upon medical reasons), cert. denied, 520 U.S. 1201, 117 S.Ct. 1562, 137 L.Ed.2d 708 (1997); State v. Williams, 339 N.C. 1, 31, 452 S.E.2d 245, 263 (1994) (finding harmless error since the transcript revealed the substance of the ex parte communications and defendant was not harmed by his absence from the private conversation), cert. denied, 516 U.S. 833, 116 S.Ct. 109, 133 L.Ed.2d 61 (1995); State v. Payne, 328 N.C. 377, 389, 402 S.E.2d 582, 589 (1991) (holding that questioning of prospective jurors in defendant's absence was harmless beyond a reasonable doubt as prospective jurors who were excused were either ineligible to serve or excused for manifestly unobjectionable reasons).

Defendant, however, contends that Smith and its progeny mandate a new trial. We disagree. In Smith the trial court invited prospective jurors to the bench to privately discuss reasons for excusal. State v. Smith, 326 N.C. at 793, 392 S.E.2d at 363. "After each of these unrecorded private bench conferences, the trial court excused the prospective juror, indicating that it was within the discretion of the court to excuse that particular juror." Id. Since there was no record from which to determine the substance of the private discussions, this Court held that "the State has failed to carry its burden [of proving] that the trial court's errors were harmless beyond a reasonable doubt." Id. at 794, 392 S.E.2d at 364. Again in State v. Moss, 332 N.C. 65, 74, 418 S.E.2d 213, 219 (1992), this Court granted the defendant a new trial because "[n]othing in the record ... establishe[d] the nature and content of the trial court's private discussions with the prospective jurors." See also State v. Cole, 331 N.C. 272, 275, 415 S.E.2d 716, 717 (1992)

(granting new trial when prospective jurors excused after unrecorded bench conferences and record was silent, thus preventing a determination that the error was harmless); State v. McCarver, 329 N.C. 259, 260-61, 404 S.E.2d 821, 821-22 (1991) (holding that the excusal of prospective jurors following unrecorded bench conferences "in the discretion of the Court and for good cause shown" was not sufficient to prove that the error was harmless beyond a reasonable doubt).

In the case sub judice the substance of the unrecorded communication with prospective juror Tanner was adequately revealed in the trial transcript. The transcript shows that Tanner was properly excused "[b]ecause ...