State v. Willis, 569A87

• Decision Date: 04 September 1992
• Docket Number: No. 569A87,569A87
• Citation: 332 N.C. 151,420 S.E.2d 158
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Earl WILLIS, Donna Sue Cox.

Page 158

420 S.E.2d 158

332 N.C. 151

STATE of North Carolina v. James Earl WILLIS, Donna Sue Cox.

No. 569A87.

Supreme Court of North Carolina.

Sept. 4, 1992.

Appeals as of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing death penalties entered by Barnette, J., at the 28 September 1987 Criminal Session of Superior Court, Robeson County, upon jury verdicts finding defendants guilty of first degree murder. Heard in the Supreme Court 13 December 1990.

Each of the defendants was charged with the first degree murder of Jerry Richardson. These cases were consolidated for trial. Evidence introduced at the trial showed that for approximately four years prior to 12 July 1986, the defendant, Donna Sue Cox, lived in a house in Parkton, North Carolina, provided for her by Jerry Richardson. Mr. Richardson also furnished Ms. Cox with a telephone, an automobile and credit cards.

The defendant Willis met Donna Sue Cox in January 1986 and Willis began coming to Cox's house when Richardson was not present. In early July of 1986, the defendants, with other accomplices, formed a plan to kill Jerry Richardson. On the night of 9 July 1986 Willis, Tony Owens, and Roy Grooms waited outside the house in which Cox was living for the purpose of killing Jerry Richardson, who was in the house with Cox. The plan to kill Mr. Richardson that night was aborted when Mr. Richardson came out of the house and drove away before the three men could get close enough to kill him.

On the night of 12 July 1986 Willis and Owens waited outside the house until Jerry Richardson left it at approximately 12:00 midnight. Cox came out with Mr. Richardson and stood on the porch as he drove down the driveway. Mr. Richardson left his automobile and opened the gate. He then drove through the gate and left his automobile to close the gate. At this time, Willis, who had been hiding in the bushes, attacked Mr. Richardson and beat him to death with a crowbar. When Willis started to attack him, Mr. Richardson called Cox who was on the front porch of the house. She turned and walked into the house.

The jury found both defendants guilty and recommended they be put to death. From a sentence imposing the death penalty in both cases, the defendants appealed to this Court.

Lacy H. Thornburg, Atty. Gen. by Doris J. Holton, Asst. Atty. Gen. and Joan H. Byers, Sp. Deputy Atty. Gen., Raleigh, for the State.

William L. Davis, III and Donald W. Bullard, Pembroke, for defendant-appellant James Earl Willis.

Malcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Asst. Appellate Defender, Benjamin S. Sendor, Sp. Asst. to the Director, N.C. Death Penalty Resource Center, Raleigh, for defendant-appellant Donna Sue Cox.

WEBB, Justice.

The defendant Willis' first assignment of error deals with a pre-trial motion. Willis made a motion to prohibit the State from exercising peremptory challenges to jurors "based on group bias." The defendant contended he was an Indian which made him a member of a cognizable racial group and entitled him to object to peremptory challenges to jurors on racial grounds under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

A hearing was held on Willis' motion. He testified that his father was white and his mother was an Indian. His birth certificate showed he was white. His driver's license and school records also showed him to be white but he testified these notations were taken from his birth certificate.

At the end of the hearing, the court made the following finding, "[t]his motion is probably premature at this time ... I will just make this ruling. I cannot find that the defendant is a member of a cognizable racial minority[.]" The court denied Willis' motion.

The defendant Willis says that there was error in the conduct of the voir dire hearing because the court sustained the objections of the State to his testimony in regard to the race with which he principally associated, of which race he considered himself to be, and some of the forms and applications he had filed which showed his race.

Assuming it was error to sustain the objections to this testimony by defendant Willis and that it was error for the court to hold that it could not find Willis was a member of a cognizable minority, we cannot hold this was prejudicial error. The State exercised nine peremptory challenges to which Willis objected. The record does not show the race of the juror as to any of these challenges. An appellant must make a record which shows the race of a challenged juror in order to show purposeful discrimination. State v. Mitchell, 321 N.C. 650, 365 S.E.2d 554 (1988). No such showing has been made in this case. No prejudicial error can be shown for rulings at the hearings on the motion to bar the exercise of peremptory challenges on racial grounds. This assignment of error is overruled.

The defendant Willis next assigns error to the denial of his motion to compel the State to disclose any plea bargains made by any of his co-defendants or accomplices. N.C.G.S. § 15A-1054(c) and the Fourteenth Amendment to the Constitution of the United States require that any plea bargain with a person who is to testify against a defendant be disclosed to the defendant. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

In this case there is nothing in the record to indicate that a plea bargain had been made by any witness against the defendants. Each of the co-defendants and accomplices who testified said he had not entered into a plea bargain. It was not error to deny this motion because there was no showing of a plea bargain. This assignment of error is overruled.

The defendant Willis assigns error to the denial of his motion to dismiss the charge against him for a violation of his right to a speedy trial under the Speedy Trial Act, N.C.G.S. § 15A-701, and a violation of his right to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution of the United States. The Speedy Trial Act applies to this case although it was repealed after the case was tried. See State v. Coker, 325 N.C. 686, 386 S.E.2d 196 (1989). The Speedy Trial Act required that the defendant be tried within 120 days of the date the defendant was arrested, served with criminal process, waived indictment or was indicted, whichever occurred last, unless that time was extended by certain specified events. Among those events is the delay from the time a pretrial motion was made until a judge made a final ruling on the motion. See State v. Kivett, 321 N.C. 404, 364 S.E.2d 404 (1988).

In this case, the record shows the defendant made a motion for discovery on 27 August 1986, which was prior to the date the bill of indictment was returned on 29 September 1986. The motion was not heard until 2 September 1987. At that time, the defendant's counsel informed the court that discovery had been completed three or four weeks earlier. We held in State v. Marlow, 310 N.C. 507, 313 S.E.2d 532 (1984), that when a motion, which tolls the running of the time under the Speedy Trial Act, is made before the bill of indictment is returned, the excluded time begins when the indictment is returned. In this case, the excluded period began on 29 September 1986 and ran at least until discovery was completed which was three or four weeks before 2 September 1987. The trial commenced on 28 September 1987 which was within the 120 day period as required by the Speedy Trial Act.

We also hold that the defendant Willis' right to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution of the United States was not violated. In determining whether a delay in a trial violates the Sixth Amendment, interrelated factors which must be examined are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice resulting from the delay. State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978); State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976); State v. Jackson, 287 N.C. 470, 215 S.E.2d 123 (1975). The length of the delay is not by itself the determining factor. In this case, the record shows discovery was not complete until August 1987 and the trial was commenced in September. There is not an intimation that the delay was oppressive to the defendant or that he was prejudiced by the delay. His Sixth Amendment right to a speedy trial was not violated. This assignment of error is overruled.

In his next assignment of error, the defendant Willis contends he was unduly restricted in his voir dire examination of the jury. Two of the prospective jurors stated unequivocally that they could under no circumstances vote for the death penalty. The defendant's attorney then attempted to rehabilitate these two jurors by asking whether they could apply the law as given to them by the judge. The court sustained objections to these questions and allowed the State's challenge for cause to the two prospective jurors. There is nothing in the record to indicate that either of the two excused jurors could have given different answers if questioned further as to their inabilities to vote for the death penalty. The court did not abuse its discretion when it sustained the objections to further questioning and allowed the challenges for cause. State v. McNeil, 324 N.C. 33, 375 S.E.2d 909 (1989), sentence vacated, 494 U.S. 1050, 110 S.Ct. 1516, 108 L.Ed.2d 756, on remand, 327 N.C. 388, 395 S.E.2d 106 (1990).

One of the prospective jurors stated that because he knew the defendant Willis "so well" the State would have to satisfy him beyond a shadow of a doubt before he would vote to find Willis guilty. He said he knew the difference between beyond a shadow of a doubt and beyond a reasonable doubt which is that "one [was] less than the other." The court then sustained an objection to a question by Willis' attorney as to whether the juror could apply the law as given to him by the court and...