Opinion
No. COA12–980.
2013-05-7
STATE Of North Carolina v. Michael Antoine McLAURIN.
Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
Appeal by defendant from judgments entered 29 February 2012 by Judge Claire V. Hill in Cumberland County Superior Court. Heard in the Court of Appeals 28 January 2013. Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
CALABRIA, Judge.
Michael Antoine McLaurin (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of first-degree murder and possession of a firearm by a convicted felon. We find no error.
I. Background
On 27 June 2009, Martin Melvin (“Melvin”), Shane Johnson (“Shane”), his younger brother Demetrius Johnson (“Demetrius”) and two others in a Ford Explorer (“Explorer”) had been driving around and smoking marijuana, then stopped at a convenience store called the Ya–Ya Market (“Ya–Ya”) in Fayetteville, North Carolina. The men attempted to sell marijuana to a group of people in the Ya–Ya parking lot. While Shane spoke with an acquaintance in the parking lot, an armed man (“the shooter”) emerged from a Ford Focus (“Focus”) and ran towards the Explorer. Demetrius was sitting in the back seat of the Explorer when the shooter fired a weapon and struck him in the head. Shane heard gunfire, turned around and saw the shooter running away from the Explorer. When Shane looked in the back seat of the Explorer, he saw Demetrius lying down in the back seat and Shane assumed Demetrius had been hit. Then Shane fired the Bulldog .38/.357 handgun he was carrying at the shooter. Shane missed the shooter, but one of the shots he fired struck and killed the owner of Ya–Ya. The shooter entered the Focus and fled. Demetrius died from a gunshot wound to the head.
George Lee Albertson (“Albertson”) was an employee at Ya–Ya and was standing outside the building when the shooter arrived. When the shooter exited the Focus, Albertson noticed a cell phone fall to the ground and later retrieved the phone. When law enforcement officers arrived, they collected the cell phone. Albertson, Melvin and Shane all described the shooter as a black male with dreadlocks. Defendant was arrested and indicted for first-degree murder, discharging a firearm into an occupied property and possession of a firearm by a felon.
At trial in Cumberland County Superior Court, Shane testified as a witness for the State. Shane told his aunt that an individual named Slow was the shooter. Subsequently, Shane's aunt sent him a picture of a man and Shane confirmed the man in the picture was the shooter. In open court, Shane identified defendant as Slow and the man in the picture. However, the photograph was not admitted into evidence during trial. Shane also testified that he was in jail and had been for approximately a year. After entering into a plea arrangement with the State, he was granted a Prayer for Judgment for involuntary manslaughter of the Ya–Ya owner and conspiracy to commit common law robbery. Since Shane testified that he had already pled guilty but his sentencing was postponed until after he testified against defendant, defendant requested that the trial court instruct the jury according to Pattern Jury Instruction 104.21, testimony of a witness with immunity or quasi-immunity. The trial court denied defendant's request for the instruction.
The jury returned verdicts finding defendant guilty of all charges. The trial court arrested judgment for the charge of discharging a weapon into occupied property. Defendant was sentenced to life imprisonment without parole for the offense of first-degree murder. For the offense of possession of a firearm by a felon, defendant was sentenced to a minimum of 16 and a maximum of 20 months. The sentences were to be served consecutively in the North Carolina Division of Adult Correction. Defendant appeals.
II. Jury Instructions
Defendant argues that the trial court erred by denying his request for a jury instruction on the testimony of the State's witness with immunity or quasi-immunity. We disagree.
Arguments “challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 inform the jury of any agreement between a witness and the State concerning charge reduction or sentence consideration. State v. Williams, 305 N.C. 656, 677, 292 S.E.2d 243, 256 (1982).
In the instant case, defendant requested that the trial court instruct the jury using the pattern jury instruction for the testimony of a witness with immunity or quasi-immunity:
There is evidence which tends to show that a witness was testifying [under a grant of immunity] [under an agreement with the prosecutor for a charge reduction in exchange for the testimony] [under an agreement with the prosecutor for a recommendation for sentence concession in exchange for the testimony]. If you find that the witness testified in whole or in part for this reason you should examine this testimony with great care and caution in deciding whether or not to believe it. If, after doing so, you believe the testimony, in whole or in part, you should treat what you believe the same as any other believable evidence.
The trial court denied defendant's request, concluding that there was no “evidence that [Shane] pled to [a] lesser offense in exchange for his testimony or under an agreement for a recommendation for a sentence concession in exchange for the testimony.” The trial court did give an instruction on interested witnesses:
You may find that a witness is interested in the outcome of this trial. You may take the witness's interest into account in deciding whether to believe the witness. If you believe the testimony of the witness in whole or in part, you should treat what you believe the same as any other believable evidence.
Defendant contends that the trial court's conclusion was erroneous because “evidence that sentencing in Shane's case had been postponed until after he testified for the State in [the instant] case reasonably led to the conclusion that the prosecutor had either expressly or implicitly agreed to recommend a sentencing concession for Shane in exchange for his testimony.” Defendant is mistaken.
In State v. Mewborn, after the State's witness, Taylor, arranged a cocaine purchase with the defendant, he “entered into a plea agreement with the State that resolved numerous narcotics charges pending against him.” 178 N.C.App. 281, 284–85, 631 S.E.2d 224, 227 (2006). In exchange for Taylor's guilty plea, the State agreed to dismiss nine of the ten charges. Id. at 285, 631 S.E.2d at 227. At the time of the defendant's trial, Taylor had not yet been sentenced. Id. The defendant requested that the trial court instruct the jury regarding Taylor's testimony, claiming it was the testimony of a witness with immunity or quasi-immunity. Id. at 291, 631 S.E.2d at 231. The trial court denied the defendant's request and instead instructed the jury on the testimony of interested witnesses. Id. Taylor had not been sentenced for his conviction, “there was no evidence of a sentencing concession” and “Taylor testified that no one made promises to him in exchange for his testimony.” Id. at 292, 631 S.E.2d at 231–32. Therefore, this Court determined that there was a lack of evidence that Taylor “had been granted immunity or quasi-immunity for his testimony against [the] defendant” and thus found no reversible error. Id. at 292, 631 S.E.2d at 232. Likewise, in the instant case, the trial court determined there was a lack of evidence presented that the State had promised Shane sentencing concessions in exchange for his testimony and Shane testified that no promises were made to him. Thus, under Mewborn, the trial court properly denied defendant's request for an instruction on immunity or quasi-immunity.
Defendant contends that Mewborn is distinguishable. Unlike the trial court's instruction to the jury in the instant case, in Mewborn, the trial court instructed the jury to review the witnesses' testimonies with “care and caution.” Id. at 291–92, 631 S.E.2d at 231–32. Consequently, the Court determined that the trial court's instruction “reflected the concept [the] defendant wished to convey to the jury” in substance. Id. at 292, 631 S.E.2d at 232. While defendant is correct that the Mewborn Court noted the inclusion of the words, “care and caution” in the trial court's instruction, that instruction was not essential to the Court's holding. Id. at 292, 631 S.E.2d at 232. Rather, the Court in Mewborn determined that there was a “lack of evidence that Taylor had been granted immunity or quasi-immunity” and that the requested instruction was not supported by the evidence. Id. at 292, 631 S.E.2d at 231–32. Mewborn never suggested that an instruction regarding the testimony of interested witnesses must also include the words “care and caution.” Id. at 292–93, 631 S.E.2d at 232. Therefore, in the instant case, it was unnecessary for the trial court to include in the instruction to the jury that the witness's testimony must be reviewed with “care and caution.”
In addition, we note that the jury was clearly aware of Shane's impending sentencing. During cross-examination, defense counsel questioned Shane about any arrangements he had with the State regarding sentencing:
[Defense counsel]: The involuntary manslaughter and the other charge that you pled guilty to, you're awaiting sentencing on that; is that correct?
[Shane]: Yes.
[Defense counsel]: And what you have told this jury is that you're going to be sentenced after your testimony here today; is that correct?
[Shane]: I don't think any sentence is going to be today.
[Defense counsel]: But you were not going to be sentenced until you testified today?
[Shane]: Yes.
[Defense counsel]: Is that correct?
[Shane]: Yes.
[Defense counsel]: And you said that nobody's promised you anything in any way, but you were not going to be sentenced until you came in here and testified today?
[Shane]: Yes.
Moreover, during closing arguments, defense counsel pointed out that Shane may receive potential benefits for his testimony:
something else that's critical and, I know you picked up on this, is [Shane] hadn't been sentenced. He has not been sentenced for the crime in which he has pled guilty to until he testified.... [Shane] miraculously walks in here, identifies [defendant] for the first time in the courtroom and now he's going to be sentenced. And yeah, it will be up to a judge, based on recommendations I presume by the state, about what that sentence may be.
That is important in assessing the credibility of witnesses.
Thus, defendant was able to suggest both during cross-examination and in closing argument that Shane had the potential to receive a benefit or leniency in his sentencing in exchange for his testimony.
Therefore, even though the trial court did not specify in the instructions that Shane received any special treatment in exchange for his testimony, this information was presented to the jury on two occasions to enable them to evaluate Shane's credibility accordingly. Consequently, the trial court did not err by denying defendant's request for the immunity or quasi-immunity instruction. See Williams, 305 N.C. at 676–80, 292 S.E.2d at 256–58 (finding no error when trial court denied the defendant's request to instruct on immunity or quasi-immunity and the defense had “the right and the opportunity both to cross-examine the witnesses about their arrangements and to argue to the jury with respect to the impact of the arrangements upon their credibility.”). This argument is overruled.
III. Voir Dire
Defendant contends that the trial court's failure to call jurors randomly for voir dire violated defendant's statutory and constitutional rights and was prejudicial per se. We disagree.
“The extent and manner of jury voir dire rests within the sound discretion of the trial court, and the trial court's rulings will not be overturned absent a showing of an abuse of discretion.” State v. Williams, 350 N.C. 1, 31, 510 S.E.2d 626, 645 (1999). Jurors must be called “from the panel by a system of random selection which precludes advance knowledge of the identity of the next juror to be called.” N.C. Gen.Stat. § 15A–1214(a) (2011). “When a trial court acts contrary to a statutory mandate, the right to appeal the court's action is preserved, notwithstanding the failure of the appealing party to object at trial.” State v. Golphin, 352 N.C. 364, 411, 533 S.E.2d 168, 202 (2000) (citation omitted).
In general, when a defendant “assigns error to a violation of N.C.G.S. § 15A–1214 [he] must show that he was prejudiced by that statutory violation before he is entitled to relief.” State v. Thompson, 359 N.C. 77, 86, 604 S.E.2d 850, 859 (2004). In Thompson, the Court found no error where the defendant “made no attempt ... to show how the alleged statutory violation prejudiced his defense” and the Court could not find any apparent prejudice in the record. Id. at 86, 604 S.E.2d at 859–60. Furthermore, while the Thompson Court recognized that “[s]tructural error is a rare form of constitutional error ... which [is] so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence[,]” it noted that “a mere technical violation of N.C.G.S. § 15A–1214 is insufficient to support a claim of structural error .” Id. at 86–87, 604 S.E.2d at 860. (internal citations and quotation marks omitted and emphasis added).
In the instant case, after defense counsel challenged a juror for cause, the trial court instructed the clerk to call another prospective juror, as a replacement. The clerk called Edith Bert (“Bert”). When the trial court realized that Bert had been called before defense counsel completed its voir dire of the remaining jurors, he instructed Bert to “just have a seat.” Defense counsel completed his voir dire, and the trial court recessed for the day. The next morning, Bert was called as a prospective juror and ultimately served on the jury. Neither the State nor defendant objected at trial.
On appeal, defendant claims that because everyone in the courtroom had “advance knowledge of the identity of the next juror to be called[,]” the trial court violated N.C. Gen.Stat. § 15A–1214 and defendant is entitled to a new trial. Defendant claims the error “circumvented the defendant's substantial constitutional rights” and thus “the error is prejudicial per se.” However, just as the defendant in Thompson failed to show prejudicial error, defendant also has failed to show how he was prejudiced by this error. Defendant has not shown how this statutory violation “was so serious as to render his trial unreliable as a determination of guilt or innocence....” Id. at 87, 604 S.E.2d at 860. While Bert did ultimately serve on the jury and defendant claims that “this Court can only speculate about the results had the mandate been obeyed,” defendant has not articulated any prejudice and we find no prejudicial error.
IV. Conclusion
The evidence did not support defendant's requested jury instruction on immunity or quasi-immunity of the State's witness. The jury had the opportunity to determine Shane's credibility by defendant's cross-examination, argument to the jury, and the instruction given on interested witnesses. Therefore, the trial court did not err in failing to give the requested instruction. Furthermore, although the trial court erred when calling prospective jurors during voir dire, defendant has failed to demonstrate that any prejudicial error occurred.
No error. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).