State v. Noland

• Decision Date: 02 October 1984
• Docket Number: No. 1A83,1A83
• Citation: 312 N.C. 1,320 S.E.2d 642
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John Thomas NOLAND, Jr.

Page 642

320 S.E.2d 642

312 N.C. 1

STATE of North Carolina v. John Thomas NOLAND, Jr.

No. 1A83.

Supreme Court of North Carolina.

Oct. 2, 1984.

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

Grant Smithson and Jean B. Lawson, Charlotte, for defendant-appellant.

COPELAND, Justice.

Defendant brings forward numerous assignments of error ¹ relating to the guilt determination phase of his trial and to the sentencing phase of his trial. After a careful consideration of these assignments, as well as the record before us, we find no error in any of these proceedings and affirm the judgments.

GUILT PHASE

I.

Defendant contends that prior to the guilt-innocence phase of the trial, the trial court erred in "death-qualifying" the jury because a "death-qualified" jury is allegedly prosecution prone, i.e., more likely to convict a defendant, and thus is constitutionally unacceptable. This Court has repeatedly held that North Carolina's jury selection process in first degree murder cases is constitutional. State v. Maynard, 311 N.C. 1, 316 S.E.2d 197 (1984). This assignment of error is overruled.

II.

Defendant next assigns as error the trial court's denial of his pretrial motion to bar the imposition of the death penalty on the basis that the prosecutorial discretion to seek or not to seek the death penalty violates the defendant's right to due process. ² The defendant contends that the death penalty was unconstitutionally applied in the case sub judice due to the prosecutor's exercise of discretion in determining that his case would be tried as a capital case. The defendant relies on two cases, which arguably could have factors in aggravation, in which the prosecutor in the same judicial district in which the defendant was tried permitted the defendants to plead guilty to second degree murder. State v. Coy Devore (81CRS12679, Mecklenburg County) and State v. Larry Wilson (82CRS17018, Mecklenburg County).

Under the legal system of this State, the prosecutor has the authority and duty to use his best judgment in deciding which cases to pursue and which penalties to seek. Unless defendants show that the prosecutor's selectivity is systematically based on race, religion or some other arbitrary classification, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the fact that one case possesses a strong fact situation which would justify seeking the death penalty, while another case does not, does not constitute a constitutional violation.

The United States Supreme Court, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), rejected the argument that prosecutorial discretion invalidated the death penalty statutes because it allowed impermissible discretion. The fact that discretionary stages in the legal process exist, does not, by itself, show that the death penalty is capriciously imposed. The arbitrary and capricious imposition of the death penalty with which we are concerned occurs only when the punishing authority operates without any guidance.

Thus, since the defendant has not shown that the prosecutor employed an arbitrary standard in selecting which cases are tried as capital cases, he has failed to prove that the exercise of prosecutorial discretion in any way undermines the constitutionality of our death penalty statute, N.C.Gen.Stat. § 15A-2000. This assignment is without merit.

III.

The defendant contends that the trial court erred by failing to dismiss the charge of first degree burglary at the home of Cynthia Milton. At the close of the State's evidence, defendant moved to dismiss on the above charge. The trial court denied the motion. Defense counsel renewed the motion at the end of all the evidence, and the trial court again denied the motion. Although the defendant's counsel on appeal excepts only to the denial of the motion made at the close of the State's evidence, instead of on the denial of the motion made at the close of all the evidence as mandated by N.C.Gen.Stat. § 15-173, we shall nevertheless review the merits of this assignment of error. State v. Leonard, 300 N.C. 223, 266 S.E.2d 631 (1980).

First degree burglary is the breaking and entering during the nighttime of an occupied dwelling with the intent to commit a felony therein. State v. Simpson, 299 N.C. 377, 261 S.E.2d 661 (1980). The defendant contends that the evidence was not sufficient to support the element of a breaking, either actual or constructive. The defendant does not question the sufficiency of the evidence with regard to the remaining elements of first degree burglary. A breaking, as it pertains to the crime of burglary, "constitutes any act of force, however slight, 'employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed.' " State v. Jolly, 297 N.C. 121, 127-128, 254 S.E.2d 1, 5-6 (1979); see State v. Myrick, 306 N.C. 110, 291 S.E.2d 577 (1982).

The evidence reveals that Cindy Milton walked to her back door in response to a knock on the window. There was no evidence that the victim invited the defendant inside. The witnesses testified that they heard a bang and saw Cindy running into the house, screaming. The glass pane in the back door was broken. The defendant followed Cindy into the house, cornered her in the laundry room, and shot her. There was substantial evidence from which the jury could infer that defendant entered the house with force and without consent.

When given the benefit of the reasonable inferences drawn from this evidence, we believe the State presented sufficient evidence of a breaking, as well as the other elements of first degree burglary. Thus, the defendant's motion to dismiss the charge of first degree burglary was properly denied.

IV.

In his next assignment of error, defendant argues that the district attorney during closing arguments improperly and prejudicially read to the jury the law concerning "amnesia" found in State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975). Defendant claims that this reading denigrated and downplayed his defense of insanity, by convincing the jury to totally disregard the evidence in support of his defense of not guilty by reason of insanity. We find this assignment of error meritless.

During closing argument in the guilt-innocence stage, the prosecutor read the following to the jury:

Amnesia is rare. More frequently the accused, remembering full well what he's done, alleges amnesia in false defense. He is a malingerer ... Failure to remember later, when accused, is in itself no proof of the mental condition when the crime was performed.

The precise language on amnesia in Caddell appears as follows:

"Amnesia, loss of memory, may lead to crimes entirely unknown to the culprit at a later date. That is rare. More frequently, the accused, remembering full well what he has done, alleges amnesia in false defense. He is a malingerer. To prove his innocence or guilt may be most difficult ... Failure to remember later, when accused, is in itself no proof of the mental condition when crime was performed."

Id. at 286, 215 S.E.2d at 361.

The defendant did not object to the remarks of which he now complains. Ordinarily, defense counsel must object to the prosecuting attorney's jury argument prior to the verdict in order to avoid waiving the alleged error for appellate review. State v. Brock, 305 N.C. 532, 290 S.E.2d 566 (1982). In Brock, however, we noted that:

An exception to this rule is found in capital cases where, because of the severity of the death sentence, this court will review alleged improprieties in the prosecutor's jury argument despite defendant's failure to timely object. State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979). However, even in death cases the impropriety must be extreme for this court to find that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel failed to find prejudicial when he heard it.

Id. at 537, 290 S.E.2d at 570.

In the case sub judice the evidence revealed that the defendant claimed amnesia about the shootings. Yet, according to the testimony of certain law enforcement officers, shortly after the killings the defendant made comments which indicated that he was well aware of his criminal actions. The examining psychiatrist was unable to form an opinion as to Noland's ability to know the difference between right and wrong due to the claimed amnesia; nor was the doctor able to determine whether the amnesia was in all actuality real.

The crux of the defendant's complaint is that because his defense to the murder charges was insanity, the reading of the quoted material was irrelevant to the issues before the jury. We disagree. The defendant introduced evidence at trial concerning his alleged "amnesia." By so doing, the issue of amnesia became relevant, particularly in terms of its possible fabrication and its effect on the underlying insanity defense. Defendant concedes that the well established law in North Carolina allows counsel the right to argue to the jury the law and the facts in evidence and all reasonable inferences to be drawn therefrom. 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. denied, 459 U.S. 1189, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983).

We believe the State was well within the bounds of proper argument in reading the law on amnesia to the jury since the issue was relevant and fairly presented by the evidence. Furthermore, the prosecutor's "misquoting" of Caddell did not constitute an impropriety so extreme as to require the trial judge to act ex mero motu. The assignment of error is overruled.

V.

The trial judge, in his instructions to the jury during the guilt-innocence phase, informed the jury that it might possibly serve as the triers of fact in the...