State v. Reese

• Decision Date: 04 March 1987
• Docket Number: No. 468A83,468A83
• Citation: 353 S.E.2d 352,319 N.C. 110
• Parties: STATE of North Carolina v. Michael Ray REESE.
• Court: North Carolina Supreme Court

Page 352

353 S.E.2d 352

319 N.C. 110

STATE of North Carolina v. Michael Ray REESE.

No. 468A83.

Supreme Court of North Carolina.

March 4, 1987.

Lacy H. Thornburg, Atty. Gen. by Barry S. McNeill, and Thomas J. Ziko, Asst. Attys. Gen., Raleigh, for the State.

Rosbon D.B. Whedbee and Mitchell S. McLean, Ahoskie, for defendant-appellant.

MEYER, Justice.

Defendant raises numerous assignments of error in both the guilt-innocence and sentencing phases of his trial. These assignments can be grouped into four categories: errors in jury selection, errors in the guilt-innocence phase of the trial, errors in sentencing, and the disproportionality of the sentence. We find that there were no errors in jury selection. However, we find that there was insufficient evidence to support the jury's verdict of guilt on the theory of premeditation and deliberation. There was also error in the submission of two aggravating factors in the sentencing hearing. This error requires a resentencing on the felony-murder conviction. The proportionality of defendant's sentence is accordingly not properly before us here.

On the night of Thursday, 2 December 1982, Mrs. Martha Blowe Martin was working the 11:00 p.m. to 7:00 a.m. shift at the Red Apple Market. She was the only employee on that shift. Between midnight and about 12:50 a.m. on 3 December, she was seen in the store by several customers and a citizen on Community Crime Watch duty. Shortly thereafter, she was brutally attacked and stabbed by one or more assailants. At approximately 1:00 a.m., Mrs. Frances Johnson, who had gone to the store to purchase an item, found Mrs. Martin lying on the floor of the store in a pool of blood, still alive but mortally wounded. Mrs. Johnson rushed home and informed her husband that something had happened at the Red Apple Market. Mr. Johnson then telephoned the wife of the Chief of Police of Woodland, who contacted her husband by radio.

When Woodland Police Chief Joseph White arrived on the scene at 1:17 a.m., he first checked the store to see if anyone else was there and then knelt beside the victim to see what he could do. She was still alive. He cleared her mouth and throat and asked her if she knew "who did it." She nodded and mumbled something that sounded like "Harmon" or "hundred." Police Chief White confirmed at the sentencing hearing that it did not sound at all like "Reese." Since Mrs. Martin was having difficulty speaking, Chief White told her to respond to his questions by nodding "yes" or shaking her head "no." He then asked her if "they" were white, and she shook her head, indicating "no"; if "they" were black, and she nodded, indicating "yes." He asked if "they" were young, and she nodded, indicating "yes"; if "they" were old, and she shook her head, indicating "no." He then asked if there were more than one, to which she nodded, indicating "yes"; if there were two, to which she nodded, indicating "yes"; and if there were three, to which she shook her head, indicating "no." Some of these questions and responses were repeated. The victim died minutes later, just before the rescue squad arrived. An autopsy revealed that she had received five stab wounds, six abrasions, two cuts, and some bruises. She died from two of the stab wounds.

After interviewing witnesses who had been near the store between midnight and 1:00 a.m., the sheriff's department put out an APB (all points bulletin) for a blue vehicle occupied by two young black men. Such a vehicle had been seen leaving the Red Apple. The witness who reported it, Johnny Vincent, another Woodland resident, did not identify either of the two men. As a result of the APB, Chief Deputy Otis Wheeler, the officer in charge of the case, received a telephone call from Police Chief Jerry Hathaway of Aulander. Chief Hathaway reported seeing such a car in Aulander earlier in the evening in front of the Red Apple there. He had taken the license number of the car. A check disclosed that the car was registered to one Della Futrell Harmon of nearby Conway. Deputy Wheeler went to the Harmon residence, where he found one Lynvelt Harmon. He also found and impounded the car, a blue 1972 Plymouth. At some time in the afternoon of 3 December, after talking to Harmon, Deputy Wheeler obtained warrants for the arrest of both Harmon and defendant. Chief Hathaway later identified Lynvelt Defendant turned himself in on the evening of 3 December 1982 before the warrants against him were otherwise served. He was given Miranda warnings, but nevertheless made a statement denying any involvement. When Deputy Wheeler indicated disbelief, defendant refused to talk further and asked for a lawyer. Three days later, defendant made a statement admitting involvement in the robbery only. According to this statement, he and Harmon had first gone to Aulander to rob the Red Apple. They had decided not to because of the number of people around. It had been Harmon's idea to go back to Woodland and rob the Red Apple there. Defendant had objected because he was known in Woodland and was afraid of being identified. Harmon had ridiculed defendant's fears and proposed that he, Harmon, would go into the store with a knife and force the clerk to lie face down. Defendant could then go in and take the money from the cash register. The clerk would thus never see defendant. Defendant finally agreed. When it appeared that Mrs. Martin was alone, Harmon went in. After an interval, defendant followed and, also according to his statement, was horror-stricken to find Mrs. Martin on the floor, bleeding. Defendant grabbed some money from the cash register. As they were leaving, defendant asked Harmon if he had the knife. Harmon had left the knife near the body. Defendant picked up the knife; wiped it on his clothing; and after the two were in the car, asked Harmon what to do with the knife. Harmon said to throw it out, and defendant did so.

Harmon and defendant as the two men he had seen in the blue car in front of the Red Apple in Aulander.

Defendant's statement indicated that his shoes and clothing had blood on them. The shoes were never found. Defendant's clothing had been washed by the time it was turned over to the police. Three tiny drops of human blood, two of which were submitted for analysis and found to be human rather than animal, were found on the running board on the passenger's side of Harmon's car. A small blood smear was also found on the back rest on the passenger's side seat. Neither the age nor the blood type of these spots could be determined.

The State introduced no evidence connecting defendant to the crime other than his confession and the physical evidence.

At trial, the State argued that defendant's confession was false in certain key respects and that the defendant had himself participated in the stabbings. First, the State argued that two people must have stabbed Mrs. Martin. She had marks on her throat that could have been made by a cord used to choke the victim, and there were no defense-type knife wounds on her hands and arms; thus, the State argued, her arms had been held while she was being stabbed. Although the pathologist who performed the autopsy testified that his findings were consistent with a frantic attack by either one or two assailants, the State argued that the difference in physical stature between Harmon and the victim ¹ and the lack of defensive knife wounds proved that Harmon alone could not have both held and stabbed her. Second, the prosecutor argued that the defendant made no attempt to conceal his identity. Because defendant committed an armed robbery of someone who could identify him, he must have intended to leave no witness. The prosecutor argued that defendant must not have concealed his identity because he had not said in his statement that he was masked. Although defendant's statement indicated he had seen the victim "millions" of times, no direct evidence was admitted on the witness elimination theory.

The State elected not to try Harmon and defendant together; nor did Harmon testify at defendant's trial. Harmon was subsequently tried separately on the identical charges. The State accepted a plea of Other pertinent facts will be discussed herein as they relate to our treatment of specific issues.

guilty to armed robbery, and Harmon was sentenced to the mandatory minimum fourteen-year term of imprisonment.

JURY SELECTION ISSUES

Defendant argues first that the practice of allowing the prosecutor to "death qualify" the jury before the guilt-innocence phase of the trial denied him the constitutional right to trial by a representative cross-section of the community. He contends that such juries may be more prone to convict than non-death qualified juries. This Court has repeatedly rejected defendant's argument, see, e.g., State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986); State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986), as has the United States Supreme Court, Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

Defendant next contends that the trial judge erred in denying his motion for individual voir dire of jurors and sequestration of jurors during voir dire. His argument is that group voir dire allows a so-called "domino effect": when prospective jurors are allowed to hear questions addressed to other jurors, they quickly discover the type of responses or answers that will free them from jury duty. Defendant bolsters this argument with the fact that some jurors apparently changed their minds about the death penalty during the course of the voir dire.

Motions for individual voir dire and jury sequestration are directed to the discretion of the trial judge. State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983); see N.C.G.S. § 15A-1214 (1983). The exercise of this discretion will not be reversed on appeal absent a showing of abuse. State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703. This Court has...