Opinion
No. 07-1308.
Filed 5 August 2008.
Robeson County Nos. 02 CRS 54457-58.
Appeal by defendant from judgments entered 13 December 2006 by Judge Gary E. Trawick in Robeson County Superior Court. Heard in the Court of Appeals 16 April 2008.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Steven M. Arbogast, for the State. Mary March W. Exum, for defendant-appellant.
Eric O'Briant Jones ("defendant") appeals his 13 December 2006 convictions for two counts of first-degree murder for which he received two sentences of life imprisonment. For the following reasons, we hold no error.
Merlin Ray Oxendine, Jr. ("Oxendine") was asleep in the family carport when his parents left for work on 1 July 2002. They knew that when Oxendine was high on drugs, he would take things from the house to pawn. When his parents returned home that evening, they discovered that their home had been broken into and that several items had been stolen, including a computer.
While his parents were at work, Oxendine and defendant spent the morning together. They visited Susie Strong ("Strong") to smoke a rock of cocaine, after which Strong walked to the convenience store.
Between 9:00 a.m. and 12:00 p.m. Oxendine went to the house of Steve Crawford Locklear (known as "Pasac") and asked if he wanted to buy a computer or air conditioner. Meanwhile, at the convenience store, Strong saw defendant drive up in his gray car. She testified that she rode with defendant toward Pasac's house. Pasac testified that as Oxendine was leaving his house, defendant drove up in a silver or dark gray car and motioned for Oxendine to get in the car.
Mitchell Locklear ("Locklear") _ a manager/security guard at the convenience store _ testified that between 10:00 and 10:30 a.m., Oxendine came into the convenience store and attempted to sell a knife to him. When Locklear refused, Oxendine drove off with defendant in a silver car. Oxendine and defendant were also at the convenience store between approximately 1:00 p.m. and 1:30 p.m.
Police were called to a county-operated dump site at 1:22 p.m. There, they found the body of Frank Farmer ("Farmer"), who had been shot in the head. Farmer's wife testified that when he left for the dump that day between 12:30 and 1:00 p.m., Farmer had approximately $420.00 with him and two pocket knives. He always carried a one hundred dollar bill. Police found only some change and one small pocketknife in Farmer's pockets.
While investigating Farmer's murder, police were called to another murder scene in a wooded area. There, they found Oxendine, who had been shot twice in the head. Police found two pocket knives under Oxendine's body, one of which was identified as belonging to Farmer. As the scene was being processed, defendant drove by as a passenger in a gray vehicle.
Three bullets were recovered from the bodies of Farmer and Oxendine. All of them were of the same caliber _ .38-.357 _ with the same rifling characteristics and twist pattern.
At the time of the murders, defendant was dating Sidney Hunt ("Hunt"). Hunt often let defendant drive her gray Oldsmobile. Hunt lived with her mother, Carol Locklear ("Carol"), who owned a .38 Smith Wesson Ladies' Special that she kept on top of a cabinet in the bathroom, which was accessible to defendant.
At approximately 1:40 p.m. on 1 July 2002, Carol returned to her home to find defendant there. That morning, Carol's gun had been in place. On the mornings of 4 and 5 July 2002, Carol's gun was on top of the bathroom cabinet when she checked. However, when Carol checked for her gun on the evening of 5 July 2002, the gun was missing. Carol thought that defendant had taken her gun and told Hunt to get the gun back or she would "call? the law." When Carol confronted defendant about her gun, he denied that he had taken it, but still offered to pay for it.
The day after the murders, one of Oxendine's cousins saw defendant by the road and stopped to talk to him. He flashed a one hundred dollar bill at her. Strong also saw defendant on that day. He asked if she wanted to smoke dope. When she said she had no money, defendant flashed money at her. Also on 2 July 2002, defendant told his mother that he had shot two people. Over the next several days, he repeatedly called his mother asking for money to get away because he had shot two people. Defendant told his mother that he had obtained the gun he used to shoot the two people from his girlfriend's mother.
Arrest warrants were issued for defendant's arrest on 10 July 2002. On 9 December 2002, a grand jury returned true bills of indictment for two counts of first-degree murder. On 10 February 2003, a grand jury issued superseding indictments alleging aggravating circumstances to support the imposition of the death penalty. On 30 October 2006, defendant's jury trial began. Defendant was found guilty on 8 December 2006. On 13 December 2006, after hearing sentencing evidence, the jury recommended two terms of life imprisonment. Defendant appealed in open court.
Defendant first challenges the admission of evidence which had been ordered suppressed by the trial court. He argues the denial of his motions to strike and for a mistrial were in error. We disagree.
Rulings on motions to strike and for mistrial are within the discretion of the trial court, and are reviewed for an abuse of that discretion. See State v. Smith, 291 N.C. 505, 518, 231 S.E.2d 663, 672 (1977) ("Here the trial judge, in his discretion, denied defendants' request to strike the testimony of the witness and submitted it to the jury for consideration. The exercise of that discretion will not be disturbed on appeal absent abuse." (citation omitted)); State v. Cummings, 352 N.C. 600, 630, 536 S.E.2d 36, 57 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001) ("It is well established that the decision as to whether substantial and irreparable prejudice has occurred [such that a mistrial is warranted] lies within the sound discretion of the trial judge and that his decision will not be disturbed on appeal absent a showing of abuse of discretion." (citing State v. McNeill, 349 N.C. 634, 646, 509 S.E.2d 415, 422-23 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999)). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citing State v. Parker, 315 N.C. 249, 258-59, 337 S.E.2d 497, 502-03 (1985)).
Defendant successfully obtained a ruling prohibiting the State from asking anything about a Hoke County murder case in which defendant had been a suspect, without first approaching the bench. The trial court agreed that witnesses were to be cautioned not to discuss the Hoke County case. However, the trial court left open the possibility that its ruling could be revisited in light of what other evidence was introduced.
During her testimony, Strong was asked what defendant had said to her after she informed him that Oxendine was dead. She responded that he asked if she had told anyone that the man with him earlier was named Merlin. She testified that after she told defendant that she had told "the laws [sic][,]" he said, "You shouldn't have told them that because they're looking for me about that boy. About Ronnie Gene's death. . . ." Defendant's motion to strike was overruled and his motion for a mistrial, heard out of the presence of the jury, was denied.
Strong was not responding to a question about a Hoke County murder case involving defendant. She made no mention of a Hoke County murder case involving defendant. Although she used the name "Ronnie Gene" it was not clear that she was referring to Ronnie Jacobs, the victim in the Hoke County case. She referred to comments made by defendant in response to her having told law enforcement that she had seen defendant with a man named Merlin. Defendant's comments had been disclosed in discovery and constituted an admission on his part. We cannot say that the trial court abused its discretion in denying defendant's motions to strike and for a mistrial based upon the admission of this testimony.
Defendant also challenges the testimony of Special Agent Michael Denning ("Special Agent Denning") of the State Bureau of Investigation. Special Agent Denning had interviewed Strong and the State sought corroborative evidence from him. Defendant obtained a ruling prohibiting the State from asking about, and Special Agent Denning from testifying about, (1) the Hoke County matter, (2) defendant's history of violence or being known to rob people, and (3) why Strong was afraid of defendant.
Special Agent Denning, reading from his report based upon Strong's interview, testified that when he asked Strong why she was crying after being shown Oxendine's picture, she "stated that she was crying because she believed that [defendant] had killed Merlin and that she was fearful for her life because she had seen them together." He further testified that Strong "stated that [defendant] was known to be violent and had a history of robbing people in the area." Defendant's objection was sustained before it was made, and his motion to strike was allowed. In addition, defendant asked for, and received, a curative instruction for the jury to disregard this portion of Special Agent Denning's testimony.
Out of the jury's presence, Special Agent Denning apologized for his mistake, claiming the copy of the report from which he read did not have that portion removed. Defendant again brought a motion for a mistrial. During the day's lunch break, the trial court considered the arguments of counsel and concluded that the error was inadvertent and denied defendant's motion for a mistrial. The trial court continued to state that one such mistake does not deny a fair trial but that if there were others, the court would grant a mistrial. The trial court further offered to give any additional instructions to the jury that defendant requested; however, defendant declined to make such a request. Here, the trial court's ruling is not manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. The record reflects that the trial court carefully considered what had transpired and offered to give a curative instruction; therefore, there is no abuse of discretion. As we hold that the trial court did not abuse its discretion in denying defendant's motions with respect to the challenged evidence, this argument is without merit.
Defendant next argues that he was denied a fair and impartial jury in violation of his constitutional rights because the bailiff in charge of the jury transported one of the jurors to and from the courthouse each day. We disagree.
Because one of the impaneled jurors had transportation problems, the trial court directed a courtroom bailiff to transport the juror to and from the courthouse each day. The presiding judge specifically stated,
[W]hat I want everybody to understand is I want one of the people who are serving as bailiffs. I don't want a road deputy or an investigator or anybody who is going to testify in this trial having any contact with the juror. It's got to be one of the three or four of you who have served as bailiffs. . . . [N]ot only do I not want it to be somebody who's going to testify, I don't want it to be a regular deputy . . . I want it to be a courthouse deputy who understands the rules for contact with jurors. . . . [T]here's to be absolutely no discussion of anything that goes on in this courtroom.
Thereafter, the bailiff in charge of the jury provided daily transportation for the juror.
The North Carolina Supreme Court has held that "where a witness for the State acts as a custodian or officer in charge of the jury in a criminal case, prejudice is conclusively presumed." State v. Mettrick, 305 N.C. 383, 385, 289 S.E.2d 354, 356 (1982) (emphasis in original) (citing State v. Macon, 276 N.C. 466, 473, 173 S.E.2d 286, 290 (1970)). Further, "an immediate family member of either a prosecutor trying the case, a defendant, a defendant's counsel defending the case, or a crucial witness for either the prosecution or the defense is prohibited from serving as custodian or officer in charge of the jury in a criminal case." State v. Wilson, 314 N.C. 653, 656, 336 S.E.2d 76, 77 (1985).
In Wilson, our Supreme Court reiterated that "the appearance of a fair trial before an impartial jury is as important as the fact that a defendant actually receives such a trial." Id. (citing Mettrick, 305 N.C. at 385, 289 S.E.2d at 356).
Our jury system depends on the public's confidence in its integrity. We must zealously guard against any actions or situations which would raise the slightest suspicion that the jury in a criminal case had been influenced or tampered with so as to be favorable to either the State or the defendant. Any lesser degree of vigilance would foster suspicion and distrust and risk erosion of the public's confidence in the integrity of our jury system.
Id.
Here, we see no appearance of impropriety. The bailiff who transported the juror was not a witness for the State, a witness for defendant, or related in any way to any of the parties, witnesses, or attorneys. In any of those situations, it is understandable that there could be an appearance that the jury "had been influenced or tampered with so as to be favorable to either the State or the defendant." The transporting bailiff in this case was a servant of the court, sworn to maintain the integrity and impartiality of that body. The trial court took great care to ensure the impartiality of the transporting officer; therefore, we hold defendant was not denied a fair and impartial jury.
Finally, we note that defendant set forth twenty-one assignments of error in the record on appeal, but has brought forward only three assignments of error in his brief. Pursuant to the North Carolina Rules of Appellate Procedure, his remaining eighteen assignments of error are deemed abandoned. N.C. R. App. P. 28(b)(6) (2007) ("Assignments of error not set out in the appellant's brief . . . will be taken as abandoned.").
No error.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).