State v. Speller

• Decision Date: 07 March 1997
• Docket Number: No. 505A95,505A95
• Citation: 481 S.E.2d 284,345 N.C. 600
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Donquell Renard SPELLER.

Page 284

481 S.E.2d 284

345 N.C. 600

STATE of North Carolina v. Donquell Renard SPELLER.

No. 505A95.

Supreme Court of North Carolina.

March 7, 1997.

Michael F. Easley, Attorney General by Dennis P. Myers, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by J. Michael Smith, Assistant Appellate Defender, for defendant-appellant.

WHICHARD, Justice.

Defendant was tried capitally for the first-degree murder of William Larry Brown, Jr., and for the robbery of Brown with a firearm. The jury found him guilty of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule, and recommended a sentence of life imprisonment. The trial court accordingly sentenced defendant to life imprisonment on the first-degree murder conviction and to forty years' imprisonment for robbery with a firearm, to run consecutive to the sentence for murder.

The State's evidence at trial tended to show that three black males were seen running from the Sandhill Pawn and Jewelry shop in Hamlet, North Carolina, around 4:20 p.m. on 5 April 1993. The men got into a white Ford automobile parked in front of the shop. Brown, the proprietor, came to the door of the shop with a gun and fired it, shattering the windshield of the car. The driver of the car returned fire before fleeing in the direction of Cheraw, South Carolina. Brown's wife and a friend found Brown later, lying on the floor of his shop in a pool of blood. When asked what had happened, Brown replied that he had been shot by three black men. Brown died a few hours later from a gunshot wound to the abdomen.

William Hogan, who worked at a nearby Western Auto Store, testified that he went into the pawn shop after hearing gunshots from within. He saw Brown lying behind the counter with his shirt soaked in blood. Brown appeared to have been beaten. He had a black eye, the side of his face and nose were black, and his face was puffy. Hogan also noticed that the boxes where Brown ordinarily kept shotguns and pistols intended for sale were empty.

James Poe testified for the State that he was with defendant and another man, Anthony Campbell, at the time of the murder and robbery. Poe stated that he, defendant, and Campbell went into the pawn shop under the pretense of looking for guns. When they reached the counter, Brown was standing there, and defendant put a gun to his head. Brown grabbed the gun, and a brawl ensued. Campbell hit Brown in the face, and defendant threw him to the floor. According to Poe, defendant then said, "you shouldn't have done that," and shot Brown in the stomach while he lay on the floor.

Poe testified that he took four guns from the display case and that he and Campbell left the store and got into the white Ford. Defendant came out of the shop a moment later and got into the driver's seat. Before defendant could get the car started, however, Brown came out of the shop and shot at the car, hitting defendant in the shoulder. Defendant shot back through the car window and then fled in the direction of Cheraw, South Carolina. Defendant was later driven to a hospital in Cheraw to get treatment for his gunshot wound.

Defendant testified on his own behalf that he went to Brown's shop to pawn a stolen gun and that Brown mistakenly thought he was being robbed. Defendant stated that the gun accidently discharged while he and Brown were struggling.

By his first assignment of error, defendant argues that the trial court violated his state and federal constitutional rights by conducting ten unrecorded bench conferences at which defendant was not personally present. Although present in the courtroom and represented by counsel at the conferences, defendant nevertheless contends that his absence from the bench conferences violated his constitutional right to be present at every stage of the proceedings.

Defendant asserts that this issue is controlled by State v. Exum, 343 N.C. 291, 470 S.E.2d 333 (1996). In Exum, the trial court conducted an in-chambers conference with the attorneys at the conclusion of testimony from the defendant's psychiatric expert. The substance of the conference was not recorded, and defendant was not present. Based on these circumstances, this Court held that "where the defendant has a constitutional right to be present at a critical stage of his trial and the trial court conducts private conferences or discussions in the defendant's absence, but the substance of the private discussions is not revealed in the record, a new trial is required." Id. at 296, 470 S.E.2d at 335. Significantly, however, the trial court had conducted both bench conferences and in-chambers conferences in the defendant's absence, yet this Court addressed only the in-chambers conferences. Id. at 293, 470 S.E.2d at 334. Hence, the rule pertaining to bench conferences established in State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991), remains intact.

In Buchanan, the trial court conducted eighteen bench conferences with defense counsel and counsel for the State. Although present in the courtroom, the defendant was not included in the conferences. After extensive analysis of the federal courts' treatment of such conferences, as well as North Carolina constitutional jurisprudence, this Court concluded that a defendant's constitutional right "to be present at all stages of his capital trial is not violated when, with defendant present in the courtroom, the trial court conducts bench conferences, even though unrecorded, with counsel for both parties." Id. at 223, 410 S.E.2d at 845. The burden is on the defendant to show the usefulness of his presence in order to prove a violation of his right to presence. Id. at 224, 410 S.E.2d at 845.

Like the defendant in Buchanan, defendant here was represented by counsel at each of the conferences. He was in a position to observe the context of the conferences and to inquire of his attorneys as to the nature and substance of each one. Despite his absence, defendant had a firsthand source as to what transpired, and defense counsel had the opportunity and obligation to raise for the record any matter to which defendant took exception. On these facts, defendant has failed to demonstrate that the bench conferences implicated his constitutional right to be present or that his presence would have substantially affected his opportunity to defend. The trial court therefore did not err in conducting the bench conferences with the attorneys out of the hearing of defendant.

Defendant further argues that the unrecorded bench conferences violated his right to a complete recordation of the proceedings in a capital case pursuant to N.C.G.S. § 15A-1241, which provides in pertinent part: "The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench." N.C.G.S. § 15A-1241(1) (1988). We have held that "statements from the bench" do not include routine bench conferences between the trial court and the attorneys. State v. Cummings, 332 N.C. 487, 497, 422 S.E.2d 692, 697 (1992). This assignment of error is therefore overruled.

Defendant next contends that the trial court did not properly control the prosecutor during her opening statements to the jury and that her actions severely prejudiced the remainder of defendant's trial. The prosecutor began her opening statement with a quote from the Bible. Thereafter, on several occasions, she invited the jurors to put themselves in the place of the victim and to project their fears of violent crimes onto the victim. She further commented on the heroics of the victim, emphasizing that he was outnumbered three to one, and asked for sympathy for the victim's "beautiful young widow." Despite repeated admonitions from the trial court to "stick to the...