State v. Thomas

• Decision Date: 08 November 1996
• Docket Number: No. 91A95,91A95
• Citation: 344 N.C. 639,477 S.E.2d 450
• Parties: STATE of North Carolina v. James Edward THOMAS.
• Court: North Carolina Supreme Court

Page 450

477 S.E.2d 450

344 N.C. 639

STATE of North Carolina v. James Edward THOMAS.

No. 91A95.

Supreme Court of North Carolina.

Nov. 8, 1996.

Michael F. Easley, Attorney General by Ralf F. Haskell, Special Deputy Attorney General, for the State.

Elizabeth G. McCrodden, Raleigh, for defendant-appellant.

FRYE, Justice.

On 23 June 1986, defendant James Edward Thomas was indicted for murder and first-degree sexual offense. At the 6 July 1987 Criminal Session of Superior Court, Wake County, he was tried capitally to a jury, found guilty, and sentenced to death for the first-degree murder conviction and to a consecutive term of life imprisonment for the sexual offense conviction. On appeal, this Court ordered a new capital sentencing proceeding on the first-degree murder conviction At defendant's new capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of death for the first-degree murder conviction. The jury found as aggravating circumstances that defendant had been previously convicted of a violent felony, N.C.G.S. § 15A-2000(e)(3) (1988) (amended 1994); and that the murder had been committed while defendant was engaged in a sexual offense, N.C.G.S. § 15A-2000(e)(5). The jury also found twenty-six of the twenty-nine statutory and nonstatutory mitigating circumstances submitted to it. On 24 February 1995, Judge Thompson, upon the jury's recommendation, imposed a sentence of death.

based on the United States Supreme Court's decision in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). State v. Thomas, 329 N.C. 423, 407 S.E.2d 141 (1991). Defendant's new capital sentencing proceeding was held 13 through 24 February 1995, Judge Jack Thompson presiding.

Defendant appeals to this Court as of right from the sentence of death. On this appeal, defendant makes eleven arguments, supported by fourteen assignments of error. We reject each of these arguments and conclude that defendant's capital sentencing proceeding was free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant's sentence of death.

The evidence supporting defendant's conviction is summarized in this Court's prior opinion, State v. Thomas, 329 N.C. 423, 407 S.E.2d 141, in which we vacated defendant's death sentence for McKoy error and remanded the murder case for a new capital sentencing proceeding. That evidence will not be repeated here, except where necessary to discuss the issues before us.

In his first argument, defendant contends that the trial court committed plain error at his capital resentencing proceeding by allowing the case to be tried before a jury that had not been duly sworn in open court in the presence of defendant and his counsel. We reject defendant's argument since there is no evidence that the case was tried before a jury that had not been duly sworn.

Under our Constitution, the accused in a criminal trial is entitled to trial by an impartial jury. N.C. Const. art. I, § 24. Our legislature has provided statutory procedures for selection, excusal, and swearing of jurors. See, e.g., N.C.G.S. §§ 9-6 (Supp.1995), 9-14, 9-15 (1986). These statutes contemplate a procedure whereby each juror is sworn to "truthfully and without prejudice or partiality try all issues in criminal or civil actions that come before him and render true verdicts according to the evidence." N.C.G.S. § 9-14. However, once all jurors, including alternate jurors, have been selected to try a particular criminal case, they are impaneled by the clerk as follows:

"Members of the jury, you have been sworn and are now impaneled to try the issue in the case of State of North Carolina versus............ You will sit together, hear the evidence, and render your verdict accordingly."

N.C.G.S. § 15A-1216 (1988).

Our Constitution also provides that a defendant has the right to be present at every stage of the trial. State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990). This right cannot be waived in capital trials. State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969). We have declined to extend the nonwaivable right to be present in capital trials to pretrial jury selection matters. State v. McCarver, 341 N.C. 364, 381, 462 S.E.2d 25, 34 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 1332, 134 L.Ed.2d 482 (1996); see also State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996).

Defendant admits that he was present for the selection and impaneling of the jury selected for his capital sentencing proceeding. He does not even contend that he was not physically present when the jurors were given their oath of office. He contends, rather, that the record does not affirmatively show whether the jurors were sworn and, if sworn, the form of the oath taken by them and whether the oath was taken in his presence in open court. Admitting that no objection was made at trial, and that no question was raised as to whether the jurors were sworn or the circumstances surrounding any oaths In Baldwin v. Kansas, 129 U.S. 52, 9 S.Ct. 193, 32 L.Ed. 640 (1889), the United States Supreme Court held that a journal entry to the effect that the oath has been given is sufficient to overcome the contention that a jury was not adequately sworn. In State v. Fennell, 307 N.C. 258, 262, 297 S.E.2d 393, 396 (1982), this Court noted the presumption of regularity in a trial, stating that "where the record is silent on a particular point, it will be presumed that the trial court acted correctly." See also State v. Bennett, 308 N.C. 530, 534, 302 S.E.2d 786, 789 (1983); State v. Sanders, 280 N.C. 67, 72-73, 185 S.E.2d 137, 140 (1971). In the instant case, however, the record is not silent. As defendant concedes, there are two notations in the record to the effect that the jury had been duly sworn. The judge stated to the jury: "You have taken an oath as jurors that you will try all matters that come before you and render true verdicts according to the evidence." The record also includes a statement by the clerk: "Members of the jury, you have all been duly sworn." Thus, to the extent that the record in the instant case shows anything, it shows that the jurors were duly sworn. Defendant presents no evidence to the contrary. Accordingly, we reject defendant's argument that he was tried by a jury that had not been duly sworn.

taken by the jurors, defendant nevertheless contends that this Court should find plain error because he was not tried by a jury that had been duly sworn.

Defendant's second argument is based on two assignments of error. In one assignment of error, defendant contends that the trial court erred in denying his motion to exclude photographs of the victim on the grounds that the photographs were prejudicial and unnecessary. In the other assignment of error, defendant contends that the trial court erred in partially denying his motion regarding the especially heinous, atrocious, or cruel aggravating circumstance and then by allowing the State thereafter to conduct its voir dire of prospective jurors and to present evidence or question witnesses in ways suggesting that the crime was especially heinous, atrocious, or cruel.

Before trial, defendant filed several motions, including a "Motion to Exclude Photographs," which the trial court denied. Defendant also filed a "Motion to Prevent the State of North Carolina from Submitting N.C.G.S. § 15A-2000(e)(9), Which Was Previously Rejected by the Jury, as an Aggravating Factor and to Exclude Evidence Tending to Show that the Murder of Teresa Ann West was Heinous, Atrocious and Cruel." The trial court granted defendant's motion insofar as it requested that the aggravating circumstance that the murder was "especially heinous, atrocious, or cruel" not be allowed. The trial court denied the motion as it related to the State's presentation of evidence concerning the circumstances of the killing.

Addressing the photographs first, defendant concedes that, pursuant to N.C.G.S. § 15A-2000(a)(3), the jury in a capital sentencing proceeding may consider all the circumstances surrounding the killing. However, defendant argues that the photographs of the victim were introduced to prove that the killing was done in an "especially heinous, atrocious, or cruel" manner, an impermissible circumstance in this case since defendant's first jury rejected this circumstance. We disagree with defendant's contention that the trial court erred in denying his motion to exclude the photographs.

In State v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied, 512 U.S. 1246, 114 S.Ct. 2770, 129 L.Ed.2d 883 (1994), we said:

This Court has stated that "[p]hotographs of homicide victims are admissible at trial even if they are 'gory, gruesome, horrible, or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury.' " State v. Thompson, 328 N.C. 477, 491, 402 S.E.2d 386, 394 (1991) (quoting State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)). "Photographs may also be introduced in a murder trial to illustrate testimony regarding the manner of killing so as to prove circumstantially the elements of murder in the first degree." State v. Hennis Rose, 335 N.C. at 319, 439 S.E.2d at 528.

323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988).

Admissible evidence may be excluded, however, under Rule 403 of the North Carolina Rules of Evidence if the probative value of such evidence is substantially outweighed by its prejudicial effect. "Whether the use of photographic evidence is more probative than prejudicial and what constitutes an excessive number of photographs in light of the illustrative value of each ... lies within the discretion of the trial court." Hennis, 323 N.C. at 285, 372 S.E.2d at 527.

In this case, seven photographs were introduced into evidence. Although some of the photographs were...