State v. Ross

• Decision Date: 12 June 1991
• Docket Number: No. 493A90,493A90
• Citation: 405 S.E.2d 158,329 N.C. 108
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Keith ROSS.

Page 158

405 S.E.2d 158

329 N.C. 108

STATE of North Carolina v. James Keith ROSS.

No. 493A90.

Supreme Court of North Carolina.

June 12, 1991.

Appeal as of right by defendant pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 100 N.C.App. 207, 395 S.E.2d 148 (1990), affirming judgments imposing two consecutive sentences of life imprisonment entered by Sitton, J., at the 13 March 1989 Criminal Session of Superior Court, McDowell County, upon jury verdicts finding defendant guilty of two counts of second-degree murder. On 10 January 1991 this Court allowed defendant's petition for discretionary review of additional issues. Heard in the Supreme Court 8 May 1991.

Lacy H. Thornburg, Atty. Gen. by Charles M. Hensey, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was indicted on two counts of first-degree murder for the deaths of Gary Floyd Bailey and Richard Buchanan. At defendant's first trial, the jury returned verdicts of guilty of first-degree murder, and defendant was sentenced to death on both counts. On appeal, this Court awarded a new trial. State v. Ross, 322 N.C. 261, 367 S.E.2d 889 (1988). At defendant's new trial, the jury returned verdicts of guilty of second-degree murder on both counts. The trial court imposed consecutive sentences of life imprisonment. A divided panel of the Court of Appeals found no error in the trial. State v. Ross, 100 N.C.App. 207, 395 S.E.2d 148 (1990). Defendant appealed as of right on the issue raised by the dissent. N.C.G.S. § 7A-30(2) (1989). We allowed defendant's petition for discretionary review of two additional issues. We now affirm the decision of the Court of Appeals.

The State presented evidence tending to show the following:

In January 1985, defendant was the caretaker and ranger at Camp Grimes, a Boy Scout retreat. Defendant lived alone in a house at the camp. While living at the camp, defendant received permission to build a grease pit near his home. Defendant built the pit with the help of Richard (Ricky) Buchanan.

Teddy Buckner testified that he stayed at Ricky Buchanan's house on 18 January 1985. Buckner went with Buchanan to defendant's house on that day. He waited outside while Buchanan visited defendant. After waiting for almost thirty minutes, Buckner went inside. When Buchanan asked Buckner if he wanted to engage in homosexual acts, he declined.

On 23 January 1985, Ricky Buchanan and Gary Bailey went to visit defendant at the scout camp. When they did not return home that evening, Bailey's mother looked for but did not find them.

On 26 January 1985, the two boys' bodies were found buried in the grease pit approximately 130 feet from defendant's house. Autopsies revealed that Bailey suffered three gunshot wounds--one to his head near the left ear, one entering the back and exiting the chest, and one entering the abdomen. Buchanan suffered five gunshot wounds--one each in the back, arm, and abdomen, and two in the head. One of Buchanan's wounds was a contact wound, containing powder residue in the wound itself. The autopsies revealed no evidence of sexual molestation.

During a search of defendant's house, police discovered carpet stained with what could have been blood. They also found a .32 caliber pistol. Test results indicated that the gun seized from defendant's house was the gun that fired the bullets taken from the victims' bodies. Dried blood found on the pistol was consistent with Buchanan's blood and inconsistent with Bailey's. Human hair found on the pistol was consistent with Buchanan's, but not with defendant's or Bailey's.

The State also presented evidence that on 25 January 1985, defendant sought to match a carpet sample at a local furniture store. He also returned a carpet cleaner that he had rented the previous day.

Defendant testified as follows: He admitted consensual homosexual contact with Ricky Buchanan. On 23 January 1985, Buchanan and Bailey came to defendant's house. During a game of strip poker, defendant went to his kitchen and returned to find Bailey holding a .9 millimeter pistol and Buchanan brandishing an axe. The boys threatened to kill him. When the pistol did not fire, Buchanan grabbed it from Bailey and pulled the trigger. Defendant took this opportunity to get his .32 caliber pistol. Defendant told the boys to drop the gun, but they moved towards him and he fired. Defendant checked the boys' pulses and found that they were dead. He panicked and decided to bury the bodies in the grease pit. He also tried to clean the room.

A few days later, defendant voluntarily surrendered to police officers and gave them the .9 millimeter pistol. He also told the officers where the bodies were buried and where to find the .32 caliber pistol.

Defendant argues he is entitled to a new trial because the trial court, during an informal pretrial conference, "directed defense counsel to prepare a statement affirmatively asserting a theory of self-defense." On the same day, after giving opening remarks and introducing counsel, the court explained to the jury venire the nature of the case. It described the charges against defendant, stated that defendant had pled not guilty, and said "[t]he defendant also has filed what is known as an affirmative defense alleging and asserting the defense of self defense...."

Defendant did not object to the directive to file the statement or to the court's statement to the jury. He now argues that the order and statement violated his federal and state constitutional rights to be free from self-incrimination, to have effective assistance of counsel, to rely upon the presumption of innocence, and to due process of law.

The directive that defendant give written notice of his intent to assert self-defense was not required by law. A criminal defendant is not generally required to give notice of defenses to be asserted at trial. In enacting N.C.G.S. § 15A-959, which requires notice of the defense of insanity, our General Assembly removed language that would have required notice of alibi as well. N.C.G.S. § 15A-959 (1988), Official Commentary. No other notice requirements appear.

While we find defendant's contention here without merit, we join the Court of Appeals in "strongly caution[ing] against such methods as standard practice without legislative enactment...." Ross, 100 N.C.App. at 211, 395 S.E.2d at 150. As the Supreme Court of Arizona stated in rejecting an argument that the inherent power of the court allows it to provide for discovery beyond that expressed in the rules, "pretrial discovery by the State[ ] is fraught with constitutional problems. Each and every trial judge would be left to his own devices to determine where fair play in favor of the State ends and infringement on personal rights begins." Moore v. State, 105 Ariz. 510, 513, 467 P.2d 904, 907 (1970). Likewise,

[i]n the area of prosecution discovery, in contrast to defense discovery, trial courts generally are prohibited from exercising their inherent power to require disclosure beyond that specifically noted in the discovery provision. Prosecution discovery is viewed as so controversial that the failure of the statute or court rule to specifically authorize a particular type of disclosure is taken as indicating the rulemakers did not intend to allow the prosecution such discovery.

2 LaFave & Israel, Criminal Procedure § 19.4, at 511 (1984) (footnote omitted). In Richardson v. District Court, etc., 632 P.2d 595 (Colo.1981), even though a rule granted broad power to the State for discovery from defendants, the trial court ordered discovery beyond the language of the rule. The reviewing court stated:

The exclusion [in the statute] of non-expert witnesses' statements from prosecutorial discovery, far from being an oversight, reflects a purposeful decision to prevent the impairment of constitutional rights that arguably could result from a rule permitting the court to enlarge the categories of prosecutorial discovery on the basis of an ad hoc evaluation of each case.

Id. at 599; see also People v. Williams, 87 Ill.2d 161, 57 Ill.Dec. 589, 429 N.E.2d 487 (1981).

Such problems notwithstanding, we conclude that the directive and statements here were benign. The directive was less burdensome to defendant than the notice of alibi requirement imposed by Florida and approved in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). The Court there upheld a rule requiring defendant to provide the names and addresses of alibi witnesses. The requirement here did not involve the disclosure of defense witnesses or statements. Further, though the Court did not consider this factor, the Florida rule would have precluded testimony by unlisted witnesses as a sanction for violating the discovery rule. The court's directive here carried no such draconian consequence.

Other states since have enacted provisions requiring notice of a variety of defenses. See e.g., Ark.R.Crim.P. 18.3; Hawaii R.Penal P. 16(c)(3); Ill.Ann.Stat. ch. 110A, p 413(d). Following Williams, courts have upheld such provisions. See e.g., Radford v. Stewart, 320 F.Supp. 826 (D.Mont.1970), aff'd, 472 F.2d 1161 (9th Cir.1973); People v. District Court in & for County of Larimer, 187 Colo. 333, 531 P.2d 626 (1975); State v. Nelson, 14 Wash.App. 658, 545 P.2d 36 (1975). The dissent in Williams stated that "[t]he rationale of [the] decision [was] in no way limited to alibi defenses...." Williams, 399 U.S. at 114, 90 S.Ct. at 1913, 26 L.Ed.2d at 484 (Black, J., dissenting).

Significantly, this case lacks the circumstances that led Justice Black to dissent in Williams. Justice Black took issue with one essential premise of the majority's decision--"that compelling a defendant to give notice of an alibi defense before trial is no different from requiring a...