State v. Yelverton

• Citation: 334 N.C. 532,434 S.E.2d 183
• Decision Date: 10 September 1993
• Docket Number: No. 485A91,485A91
• Parties: STATE of North Carolina v. L.H. YELVERTON, Jr.
• Court: United States State Supreme Court of North Carolina

Page 183

434 S.E.2d 183

334 N.C. 532

STATE of North Carolina v. L.H. YELVERTON, Jr.

No. 485A91.

Supreme Court of North Carolina.

Sept. 10, 1993.

Michael F. Easley, Atty. Gen. by Jeffrey P. Gray, Asst. Atty. Gen., Raleigh, for the State.

Harry H. Harkins, Jr., Durham, for defendant-appellant.

WHICHARD, Justice.

The jury found defendant guilty of murder in the first degree under the felony murder rule, first-degree rape (two counts), first-degree burglary, first-degree kidnapping, armed robbery, and assault with a deadly weapon with intent to kill inflicting serious injury. We find no error in defendant's capital trial nor in any part of the trial relating to the rape charges. With regard to the kidnapping, armed robbery, and assault convictions, however, we conclude that defendant is entitled to have the charges remanded for resentencing.

Evidence presented by the State tended to show that in the early morning hours of 2 December 1989 defendant broke into the home of his neighbors, John and Edna Sutton. The Suttons were awakened by defendant's entry and confronted him in the hallway. Mrs. Sutton fired a warning shot with a pistol. According to her testimony, defendant then attacked the Suttons with a dust mop and seized the gun. Mr. Sutton, a seventy-one-year-old retired farmer with a diseased heart, collapsed and died from an apparent heart attack. Defendant then demanded money from Mrs. Sutton, took money from her purse, raped her at gunpoint, took her purse and her car keys, and forced her to leave with him in her car. Defendant drove to a remote area, raped Mrs. Sutton again, then forced her to get out of the car and crawl through a ditch into some briars, where he shot her in the back of the head. Mrs. Sutton then heard defendant drive off in her car. She walked to a nearby trailer where the occupant called the sheriff.

At approximately 5:30 a.m. the same day a man identified by the victim as defendant robbed, kidnapped, and raped the manager of a convenience store in Raleigh. The victim testified her assailant was driving a car that matched a photograph of Mrs. Sutton's car.

Defendant surrendered to law enforcement authorities on 3 December 1989. In an interview with officers, he stated he did not deny that he committed the crimes, but that he could not remember having done so.

Following a capital sentencing proceeding the jury was unable unanimously to recommend punishment, and the trial court imposed a life sentence for the murder conviction pursuant to N.C.G.S. § 15A-2000(b) (1988). Defendant was sentenced, in addition, to life imprisonment for each of the two rape counts, forty years imprisonment each for the kidnapping and the armed robbery, and twenty years imprisonment for the assault, all to be served consecutively. Defendant received no separate sentence for the burglary, which was merged with the murder for judgment.

Defendant's first assignment of error concerns the trial court's denial of defendant's motion for a change of venue under N.C.G.S. § 15A-957. The trial court made extensive findings of fact, taking into account two newspaper articles covering the Sutton assaults and two television news videos covering the crime and defendant's arrest. It concluded that the media reports had been fact-based, neutral, and non-prejudicial towards defendant, and that neither descriptions of the alleged crimes nor depictions of defendant had been inflammatory. Defendant contends the trial court erred in failing to take into account excessive pre-trial word-of-mouth publicity.

When "the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial," the trial court must either transfer the case to another county or order a special venire. N.C.G.S. § 15A-957 (1988). A trial should be held in a county different from the one in which a crime was allegedly committed only in rare cases, however, because of the significant interest of county residents in seeing criminals who commit local crimes being brought to justice. State v. Jerrett, 309 N.C. 239, 254, 307 S.E.2d 339, 347 (1983).

The test for determining whether venue should be changed is whether "it is reasonably likely that prospective jurors would base their decision in the case upon pre-trial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed." Id. at 255, 307 S.E.2d at 347. The burden of proving the existence of a reasonable likelihood that he cannot receive a fair trial because of prejudice against him in the county in which he is to be tried rests upon the defendant. State v. Madric, 328 N.C. 223, 226, 400 S.E.2d 31, 33 (1991). "In deciding whether a defendant has met his burden of showing prejudice, it is relevant to consider that the chosen jurors stated that they could ignore their prior knowledge or earlier formed opinions and decide the case solely on the evidence presented at trial." Jerrett, 309 N.C. at 255, 307 S.E.2d at 348. The determination of whether a defendant has carried his burden of showing that pre-trial publicity precluded him from receiving a fair trial rests within the trial court's sound discretion. State v. Madric, 328 N.C. at 226, 400 S.E.2d at 33. The trial court has discretion, however, only in exercising its sound judgment as to the weight and credibility of the information before it, including evidence of such publicity and jurors' averments that they were ignorant of it or could be objective in spite of it. When the trial court concludes, based upon its sound assessment of the information before it, that the defendant has made a sufficient showing of prejudice, it must grant defendant's motion as a matter of law. See State v. Abbott, 320 N.C. 475, 478, 358 S.E.2d 365, 368 (1987).

Defendant argues the pre-trial atmosphere in his case, like that in Jerrett, prejudiced the jury against him and precluded a fair and impartial trial. In Jerrett this Court applied its recognition in State v. Boykin, 291 N.C. 264, 271, 229 S.E.2d 914, 918 (1976), that "there may be cases where widespread, word-of-mouth publicity may be as damaging to a defendant's right to an impartial trial as mass media publicity." There is no question that word-of-mouth publicity, like television, radio, and newspaper coverage of a crime, can infect public objectivity, particularly in a small community. See State v. Jerrett, 309 N.C. at 256, 307 S.E.2d at 348. The record in this case reveals, however, that counsel for the State and for the defense scrupulously asked members of the venire whether they had read or heard about this case from any such source. Those who admitted to having any difficulty whatsoever putting aside previously formed opinions were excused for cause. Those who remained and were impaneled stated without exception either that they had formed no opinion or that they could put what they had heard or read out of their minds and listen objectively to the evidence before them. Given that all the jurors who previously had heard about the case averred that their objectivity was unaffected by that exposure, and given that defendant was unable to identify a single juror who remained tainted by public opinion, we hold that defendant has failed to carry his burden of showing any reasonable likelihood that pre-trial, word-of-mouth publicity might have affected the fairness of his trial and that the trial court therefore properly denied defendant's motion for a change of venue.

Defendant next contends the trial court erred in refusing to permit him to question prospective jurors regarding when in their opinion the death penalty would be appropriate. He asked, for example, whether they would find it impossible to vote for life imprisonment where torture or rape had been involved or whether their general approval of the death penalty would interfere with their ability to consider the existence of mitigating circumstances. Notably, defendant was consistently permitted to ask jurors specifically whether they would automatically vote for the death penalty upon conviction, the question to which the United States Supreme Court held capital defendants entitled under the Due Process Clause of the Fourteenth amendment in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

Defendant relies on general language about the importance of voir dire in Morgan in arguing he was constitutionally entitled to ask much broader questions. There is no denying that "part of the guaranty of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Id. at ----, 112 S.Ct. at 2224, 119 L.Ed.2d at 503. Within this broad principle, however, the trial court has broad discretion to see that a competent, fair, and impartial jury is impaneled; its rulings in this regard will not be reversed absent a showing of abuse of discretion. E.g., State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980); State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979).

In State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684, reh'g denied, 507 U.S. 1046, 113 S.Ct. 1886, 123 L.Ed.2d 503 (1993), the trial court barred defense counsel from asking similar questions of members of the venire. We held that the trial court, in so doing, acted well within its discretion: "Counsel should not fish for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided.... Jurors should not be asked what kind of verdict they would render under certain named circumstances." Id. at 404, 417 S.E.2d at 772 (quoting State v. Phillips, 300 N.C. at 682, 268 S.E.2d at 455).

As in Hill, we hold here that defendant has shown no abuse of the trial court's discretion where "none of the...