State v. Stephens

• Citation: 493 S.E.2d 435,347 N.C. 352
• Decision Date: 05 December 1997
• Docket Number: No. 10A96,10A96
• Parties: STATE of North Carolina v. Davy Gene STEPHENS.
• Court: United States State Supreme Court of North Carolina

Page 435

493 S.E.2d 435

347 N.C. 352

STATE of North Carolina v. Davy Gene STEPHENS.

No. 10A96.

Supreme Court of North Carolina.

Dec. 5, 1997.

Michael F. Easley, Attorney General by Tiare B. Smiley, Special Deputy Attorney General, for the State.

John R. Rittelmeyer, Raleigh, for defendant-appellant.

LAKE, Justice.

The defendant was indicted on 13 February 1995 for three counts of first-degree murder and two counts of assault with a deadly weapon with intent to kill inflicting serious injury; on 20 March 1995, he was indicted for an additional count of assault with a deadly weapon with intent to kill. Defendant was tried capitally to a jury at the 27 November 1995 Criminal Session of Superior Court, Johnston County, Judge Narley L. Cashwell presiding. The jury found defendant guilty of all charges. Following a capital sentencing proceeding, the jury recommended sentences of death as to each murder conviction. On 20 December 1995, the trial court sentenced defendant to three separate sentences of death, one for each of the three convictions for first-degree murder; to a term of sixty-three to eighty-five months' imprisonment on each of the two convictions for assault with a deadly weapon with intent to kill inflicting serious injury; and to a term of twenty-five to thirty-nine months' imprisonment on the conviction for assault with a deadly weapon with intent to kill.

At trial, the State presented evidence tending to show that on the evening of 20 January 1995, defendant and his accomplice, William Barrow, had dinner together and shared a bottle of Everclear and some whisky. The following morning, at approximately 2:00 a.m., defendant and Barrow drove to the Johnston County Grill Road home of Lynn Wright, a reputed drug dealer. Upon arrival, defendant and Barrow went straight to Wright's bedroom and shot him six times, killing him. Defendant and Barrow then separated in the house, and Barrow walked onto the porch and shot Antwon Jenkins in the head, killing him. Barrow then attempted to kill James White, but the bullet only grazed the side of White's face. Defendant entered the living room and attempted to shoot eighty-three-year-old Kenneth Farmer in the head, but the shot only hit Farmer in the arm as he threw his hand up. Defendant next tried to shoot John Wright but apparently ran out of bullets. Defendant and Barrow then left the Grill Road home but returned shortly thereafter. At this time, defendant shot and killed Michael Kent Jones, and Barrow seriously injured June Bates with gunshot wounds to her back and arm.

Bates escaped and called for help from a nearby house.

When deputies arrived at the Grill Road home on 21 January 1995, they found a black man lying on the porch, dying from gunshot wounds to his head. The officers found four fired cartridge cases, caliber 38 Special, in a water basin in the front room. In the first bedroom, the officers found another black man, Lynn Wright, lying on the floor surrounded by blood and crack cocaine. Behind the house, the officers found another victim, Kenneth Farmer, who had been shot in the left arm. Farmer was able to identify one of the shooters as defendant Davy Stephens because Stephens had been to the house on several previous occasions. Farmer later picked Stephens out of a police photographic lineup. Following a lead, officers found defendant hiding in the attic of a house occupied by his girlfriend, and he was apprehended. The officers also found a 38 Special revolver near defendant in the attic.

The State offered testimony from three medical examiners who concluded that Lynn Wright, Antwon Jenkins and Michael Kent Jones all died of gunshot wounds. Special Agent Eugene Bishop gave a ballistic report on the 38 Special revolver found with the defendant at the time of his arrest and determined that four cartridge casings found in the water basin at the Grill Road house were fired by this 38 Special. Bishop also tested a bullet found in the clothes of June Bates and concluded this bullet bore rifling characteristics similar to a 357 Magnum.

In his first assignment of error, defendant contends that the trial court erred in instructing the jurors, in the sentencing phase, that they were required to consider only those statutory mitigating circumstances that they deemed to have mitigating value. Defendant thus argues that he is entitled to a new sentencing proceeding because there is a reasonable likelihood such instruction led the jurors to believe they could accord no mitigating value to the statutory mitigating circumstances. We conclude the jury could not have been so misled.

The trial court's instructions to the jury, when read as a whole and viewed in light of the Issues and Recommendation as to Punishment forms, did not misinform jurors of their duty to weigh any statutory mitigating circumstance which they found to exist when considering their recommendation of a life imprisonment or death sentence. A reasonable interpretation of the instructions, construed contextually, could not have misled jurors to believe they could disregard any statutory mitigating circumstances found to exist. A jury charge must be construed contextually and will be upheld when the charge as a whole is correct. State v. Chandler, 342 N.C. 742, 751-52, 467 S.E.2d 636, 641, cert. denied, --- U.S. ----, 117 S.Ct. 196, 136 L.Ed.2d 133 (1996).

Reading the entire charge in context, the instructions in question could not have had the effect of confusing issues of statutory and nonstatutory mitigating circumstances for the jury. Since defendant was on trial for three separate murders, the trial court gave three separate instructions on mitigating circumstances. The trial court, in each of the three cases, submitted and instructed on three statutory mitigators: that defendant had no significant history of prior criminal activity, N.C.G.S. § 15A-2000(f)(1); that the capital felony was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2); and that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired, N.C.G.S. § 15A-2000(f)(6). The (f)(4) mitigator, that the murder was committed by another and defendant was only an accomplice and his participation was relatively minor, was submitted with respect to one of the murders. In all three cases, the jury answered "yes" with respect to the (f)(1) and (f)(2) statutory mitigators while at the same time rejecting the (f)(6) mitigator, and the jury rejected the (f)(4) mitigator in the one case. Further, in each case, the trial court submitted eighteen nonstatutory mitigating circumstances and the catchall provision, and the jury in each case found that eight of these both existed and had mitigating value. The jury thus demonstrated its discernment in light of the instructions.

With regard to each of the statutory mitigating circumstances in each case, the trial court instructed the jurors that they "will find this mitigating circumstance " if they find particular factual matters exist, and that if one or more of the jurors find "by a preponderance of the evidence that this circumstance exists you would so indicate by having your foreperson write, yes, in the space provided after this mitigating circumstance on the Issues and Recommendation Form." (Emphasis added.) This was a correct instruction and specifically informed the jurors that each was a "mitigating circumstance" if one or more of them found it to exist.

We do note that in one instance the trial court partially mixed the statutory and nonstatutory standards. After instructing the jury on the facts that would support the (f)(1) mitigator, the no significant history of prior criminal activity circumstance, in the murder of Lynn Wright, the trial court properly instructed the jurors that if they found this circumstance to exist, their foreperson would so indicate by writing "yes" on the form, but if none of them found this circumstance to exist, their foreperson should write "no" on the form. The trial court then mistakenly added the phrase, "[t]he foreperson is to answer yes as to mitigating circumstances if one juror finds a mitigating circumstance and deems it to be mitigating." It is significant with respect to the jury's notice of this statement that defense counsel did not apparently notice this miscue and made no objection either at this point or later at the close of jury instructions when specifically asked by the trial court if counsel had any corrections or objections.

This Court has previously held that a mere lapsus linguae by the trial court while reading instructions to the jury, which is not called to the trial court's attention at the time it is made, will not constitute prejudicial error when it is apparent from a contextual reading that the jury could not have been misled. State v. Reid, 335 N.C. 647, 667, 440 S.E.2d 776, 787 (1994). This situation is distinguishable from those cases in which this Court has found error where the trial court's instructions confused statutory and nonstatutory mitigating circumstances. See State v. Roseboro, 344 N.C. 364, 379-80, 474 S.E.2d 314, 322-23 (1996); State v. Howell, 343 N.C. 229, 239-40, 470 S.E.2d 38, 43-44 (1996); State v. Jaynes, 342 N.C. 249, 285, 464 S.E.2d 448, 470 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996). In Howell and Jaynes, the trial court lumped together all of the statutory and nonstatutory mitigating circumstances, improperly informing the jury that it should determine if statutory mitigating evidence had mitigating value. In Roseboro, the trial court applied the nonstatutory standard for determining mitigating value to all of the statutory and nonstatutory mitigating evidence. In contrast, in this case, no such broad, all-encompassing instructions were applied, and correct written instructions were included on the...