State v. Oliver, No. 133A82

• Docket Nº: No. 133A82
• Citation: 307 S.E.2d 304, 309 N.C. 326
• Case Date: September 27, 1983
• Court: United States State Supreme Court of North Carolina

Page 304

307 S.E.2d 304 309 N.C. 326 STATE of North Carolina
v.
John Wesley OLIVER and George Moore, Jr. No. 133A82. Supreme Court of North Carolina. Sept. 27, 1983.

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

Richard A. Rosen, Chapel Hill, for defendant-appellant George Moore, Jr.

Frank B. Gibson, Jr., Wilmington, for defendant-appellant John Wesley Oliver.

MEYER, Justice.

I COMMON ISSUES

1. Jury selection

2. Photographs

3. Summary of evidence

4. Enmund issue

5. Strickland issue

6. Instructions

(a) Aggravating factors

i. heinous, atrocious or cruel

ii. avoiding arrest

iii. pecuniary gain

(b) Guilt determination

(c) Burden on mitigating factors

(d) G.S. § 15A-2000 violative of eighth amendment

(e) Sentence recommendation

(f) Unanimity

[309 N.C. 333] 7. Prosecutorial misconduct

8. Joint resentencing

II DEFENDANT MOORE

1. Evidentiary issues

2. Ineffective assistance of counsel

3. Peremptory instruction on age in mitigation

III DEFENDANT OLIVER

1. Evidentiary issues

2. Inadequate jury instruction

IV PROPORTIONALITY

We note at the outset that of the over twenty errors assigned by these defendants, close to one-half of these involve matters to

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which no objection or exception was taken at trial. These assignments of error are brought forward solely on the basis of the defendants' subsequent insertion of the notation "exception" placed throughout the record and the trial transcript. We disapprove of this practice.

Under Rule 10(b)(1) of our Rules of Appellate Procedure:

Any exception which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be set out in the record on appeal....

The official commentary to Rule 10 explains that exceptions cannot be later placed into the record at random:

The sifting function which is implicit in this statement might be expressed in more specific form as follows. 1) Every judicial action at the trial court level constitutes potentially prejudicial error to the party disfavored by it; hence the total of [309 N.C. 334] such actions which disfavor the eventually losing or 'aggrieved' party constitute the pool of potentially reversible errors on appeal. 2) But no such error ought be subject of appellate review unless it has been first suggested to the trial judge in time for him to avoid it or to correct it or unless it is of such a fundamental nature that no such prior suggestion should be required of counsel.

The official commentary further states:

Subdivision (b)(1). The first sentence builds upon the point developed in the commentary to subdivision (a), that only those 'exceptions' may be set out in the record on appeal and so made the basis of assignments of error which were taken in the trial court by the classic mode of the spoken or written word 'exception'; or 'deemed' taken from other conduct, as by objecting to the admission of evidence, N.C.R.Civ.P. 46(a)(2), or from other action plainly indicating opposition to judicial action taken or proposed, N.C.R.Civ.P. 46(b); or 'deemed' taken without any action by counsel simply because the error is considered sufficiently fundamental, as in instructions to the jury, N.C.R.Civ.P. 46(c).

Rule 10 functions as an important vehicle to insure that errors are not "built into" the record, thereby causing unnecessary appellate review. We have stated on numerous occasions, most recently in State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982), that a failure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal. See State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980); State v. Roberts, 293 N.C. 1, 235 S.E.2d 203 (1977).

We have addressed this problem twice during this Spring Session. In State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), we considered the effect of our Rule 10(b)(2) when no objection or exception was made at trial to instructions to the jury, and adopted there the "plain error" rule. In State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983), we adopted the plain error rule "with equal force" with regard to Rule 10(b)(1) when no objection or exception was made at trial to evidence presented and admitted, stating that:

The rule that unless objection is made to the introduction of evidence at the time the evidence is offered, or unless [309 N.C. 335] there is a timely motion to strike the evidence, any objection thereto is deemed to have been waived is not simply a technical rule of procedure. Were the rule otherwise, an undue if not impossible burden would be placed on the trial judge. There are those occasions when a party feels that evidence which might be incompetent would be advantageous to him, therefore, he does not object. Since the party does not object a trial judge should not have to decide 'on his own' the soundness of a party's trial strategy.

Id. at ---, 303 S.E.2d at 806.

Reading the language of Rule 10(b)(1) that an exception may be properly preserved "by objection noted or which by rule or law was deemed preserved or taken without any such action," together with the

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language of State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983), and State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), we conclude as follows:

1. A party may not, after trial and judgment, comb through the transcript of the proceedings and randomly insert an exception notation in disregard of the mandates of Rule 10(b).

2. Where no action was taken by counsel during the course of the proceedings, the burden is on the party alleging error to establish its right to review; that is, that an exception, "by rule or law was deemed preserved or taken without any such action," or that the alleged error constitutes plain error.

In so doing, a party must, prior to arguing the alleged error in his brief, (a) alert the appellate court that no action was taken by counsel at the trial level, and (b) establish his right to review by asserting in what manner the exception is preserved by rule or law or, when applicable, how the error amounted to a plain error or defect affecting a substantial right which may be noticed although not brought to the attention of the trial court. We caution that our review will be carefully limited to those errors

"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 [309 N.C. 336] a miscarriage of justice or in the denial to appellant of a fair trial" ' or where the error is such as to 'seriously affect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly 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 (emphasis in original).

Because the record in the case under consideration was filed prior to Odom and Black, and because the case involves sentences of death, we have elected to review all errors assigned, whether properly objected to at trial or alleged for the first time on this appeal. Those errors considered under the plain error rule will be reviewed under the standard set forth in Black.

I COMMON ISSUES

1. JURY SELECTION

Defendants contend that the trial court erred in denying their motions for funds to retain a social psychologist to assist defense counsel during jury selection. Pursuant to G.S. § 7A-450(b), defendants, as indigents, were entitled to counsel and other necessary expenses of representation at State expense. The defendants here made no showing that there was a reasonable likelihood that a social psychologist would materially assist in the preparation of their defenses or that they would not receive a fair trial without a social psychologist's aid. Absent such a showing, we can find no error. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982); State v. Williams, 305 N.C. 656, 292 S.E.2d 243, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), reh. denied, --- U.S. ----, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983); State v. Parton, 303 N.C. 55, 277 S.E.2d 410 (1981).

Each defendant now questions the jury selection process, although neither requested an individual voir dire, presumably based on our holding in Oliver I. Nor did either defendant object, during the jury voir dire, to the excusal of any juror. Defendant Oliver contends that no State interest justifies the systematic exclusion of jurors who would never vote for the death penalty and [309 N.C. 337] each defendant argues that these jurors' exclusion denied him his rights to due process and to a trial by a jury drawn from a representative, fair cross-section of the community. We have repeatedly rejected

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these arguments and reject them here. State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983); State v. Brown, 306 N.C. 151, 293 S.E.2d 569 (1982); 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, --- U.S. ----, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983); State v. Williams, 305 N.C. 656, 292 S.E.2d 243 (1982); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551, cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1979).

Both defendants contend that the jury selection violated the mandate of Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776, 784-85 (1968), that "a sentence of death cannot...