State v. Pender

• Decision Date: 17 January 2012
• Docket Number: No. COA11–647.,COA11–647.
• Citation: 720 S.E.2d 836
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Herbert Marshall PENDER, Jr.

720 S.E.2d 836

STATE of North Carolina

v.Herbert Marshall PENDER, Jr.

No. COA11–647.

Court of Appeals of North Carolina.

Jan. 17, 2012.

Appeal by defendant from judgment entered 15 December 2010 by Judge Milton F. Fitch, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 9 November 2011.

Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State.

Marilyn G. Ozer, Chapel Hill, for defendant-appellant.

BRYANT, Judge.

Where the trial court conducted a detailed inquiry and satisfied itself that a juror could be impartial and follow the court's instructions, there was no abuse of discretion. Where defendant failed to meet his burden of persuasion, the trial court did not err in denying defendant's Batson motion. Where the trial court took appropriate actions to minimize potential discovery violations, there was no abuse of discretion in denying defendant's motion for mistrial. Where defendant was the aggressor, the trial court did not err in denying defendant's request for a jury instruction on imperfect self-defense.

Facts and Procedural History

Herbert Pender (“Defendant”) was indicted on 6 April 2009 for first-degree murder pursuant to N.C. Gen.Stat. § 14–17. His first trial, which began on 12 July 2010, ended in a mistrial. A second trial began on 29 November 2010.

The State's evidence at defendant's second trial tended to show the following: a fight broke out between rival gangs early in the morning of 16 August 2008. Defendant was set leader of one of the gang's members, Julius Barnes, involved in the fight. The other rival gang member involved in the fight was Curtis Wellington, who was killed by defendant later that day.

Around 7:00 a.m. on 16 August 2008, Sergeant Boykin of the Wilson Police Department responded to a (shots fired) call. At the scene, defendant informed Sergeant Boykin that he and his girlfriend had just been targeted by gunfire as they left a residence at 105 Lee Street. The shooters fled in a gold Ford Taurus.

After briefly speaking with Sergeant Boykin, defendant notified members of his set, including Barnes and William Brown, to come and meet him. Once they convened, the group loaded a van with various weapons and firearms as they looked for defendant's attackers. After driving around town for several hours, the group stopped for dinner at a local restaurant. While outside the restaurant, a security camera captured defendant making a hand gesture known as a “One–Eye Willie” toward someone across the street. Testimony from William Brown revealed that this hand signal meant that the individual marked was their intended target.

The group then drove to the target's house, but he was not there so they proceeded to A & J Food Mart, a nearby convenience store. While waiting in the parking lot of the convenience store, Curtis Wellington and other rival gang members stopped at the convenience store and confronted defendant. Wellington and defendant exchanged words before defendant went to the van and retrieved his .9 millimeter rifle. Defendant, Barnes, and Brown then opened fire at Wellington and the other rival gang members before ultimately killing Wellington and wounding another. Wellington, according to Brown, was unarmed and never pointed a gun at defendant. After the shooting, defendant and his group fled the scene in the van, leaving behind twelve or thirteen casings from their three weapons. Defendant was subsequently captured by police in Virginia while still in possession of a .9 millimeter rifle.

On 15 December 2010, a jury found defendant guilty of first-degree murder. Defendant was sentenced to life imprisonment without parole. Defendant appeals.

_________________________

Defendant contends the trial court erred (I) in failing to excuse a juror for cause; (II) in denying defendant's Batson motion; (III) in denying defendant's motion for mistrial; and (IV) in denying defendant's request for a jury instruction on imperfect self-defense.

I

Defendant first argues the trial court erred in failing to excuse a juror for cause in violation of defendant's right to an impartial jury. We disagree.

According to N.C.G.S. § 15A–1211(b), “[t]he trial judge must decide all challenges to the panel and all questions concerning the competency of jurors.” The standard of review for a defendant's challenge to excuse a juror for cause is abuse of discretion. State v. Reed, 355 N.C. 150, 155, 558 S.E.2d 167, 171 (2002). “An abuse of discretion occurs where the trial judge's determination is manifestly unsupported by reason and is so arbitrary that it could not have been the result of a reasoned decision.” Id. (internal quotations omitted). “With regard to a challenge for cause and the trial court's ruling thereon, ‘the question is not whether a reviewing court might disagree with the trial court's findings, but whether those findings are fairly supported by the record.’ ” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 434, 105 S.Ct. 844, 857, 83 L.Ed.2d 841, 858 (1985)). In deciding whether a prospective juror should be excluded for cause, the trial court must determine whether the prospective juror's apprehension “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851–52 (1985).

Here, defendant alleges that Juror # 8 should have been excused for cause based on his comments during voir dire, specifically that he knew “things that [he] probably shouldn't know, knowing some of the details.” Asked to elaborate, Juror # 8 stated that he learned about this case primarily by reading about it in the newspaper. Based on Juror # 8's comments, the trial court and defendant inquired further as to whether he could in fact follow the law and be impartial. Juror # 8 replied that he “would do my best. All I can tell you is that I will try.” Not quite satisfied, the court and Juror # 8 engaged in the following discussion:

The Court: The question was, sir, having read what you read, number one, did you form an opinion about it? And, number two, now that you have read, if you remember what you read, can you put that aside, do your duty, hear the evidence as it comes from that witness stand and make a decision based on the evidence as you hear it come from the witness stand? That's the question.

PROSPECTIVE JUROR # 8: Yeah, I think I can.

Based on his response, defendant attempted to strike Juror # 8 for cause but his motion was denied by the court. Defendant further inquired of Juror # 8 as follows:

[Defense Counsel]: You believe you could do the best you could. My question is, sir, do you think you can block out that? You said that you had reached—I can't remember my exact question—you reached an opinion as to guilt or innocence based on what you read. Are you certain, sir, that you can put that aside?

PROSPECTIVE JUROR # 8: Again, I think I can. I believe I could put it aside.

Still concerned, defendant renewed his motion to strike and requested an additional peremptory challenge. The court again denied the motion to strike and replied that “[b]ased on the answer given by [Juror # 8] I deny the challenge.”

After review, we find the trial court did not abuse its discretion in denying defendant's motion to strike Juror # 8 for cause or his request for an additional peremptory challenge. In circumstances such as this “[w]here the trial court can reasonably conclude from the voir dire examination that a prospective juror can disregard prior knowledge and impressions, follow the trial court's instructions on the law, and render an impartial, independent decision based on the evidence, excusal is not mandatory.” State v. Green, 336 N.C. 142, 167, 443 S.E.2d 14, 29, cert. denied, 513 U.S. 1046, 115 S.Ct. 642, 130 L.Ed.2d 547 (1994). Further, “[t]he trial court has the opportunity to see and hear a juror and has the discretion, based on its observations and sound judgment, to determine whether a juror can be fair and impartial.” State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997).

In the instant case the trial court was very careful to give considerable attention to its determination of whether Juror # 8's prior knowledge of the case would impair his ability to fairly evaluate the evidence as presented in court and in accordance with instructions of the trial court. Based on Juror # 8's affirmative responses both to the court and to defense counsel, the trial court was satisfied that Juror # 8 could be fair and impartial and that he could set aside any prior impressions he may have drawn from media coverage and follow the court's instructions as to the law. Therefore, the trial court did not err in denying defendant's challenge to excuse Juror # 8 for cause.

II

Defendant also contends the State used six of its peremptory challenges to excuse prospective African–American jurors in violation of defendant's constitutional right to equal protection. We disagree.

“[T]he Equal Protection Clause [of the Fourteenth Amendment to the United States Constitution and Article I, Section 26 of the North Carolina Constitution] forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.” Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 83 (1986), holding modified by Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In Batson, the Supreme Court “outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause.” Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 1865, 114 L.Ed.2d 395, 405 (1991). Step one requires that defendant “make a prima facie showing that the prosecutor has exercised peremptory challenges on...