Opinion
No. COA10-600
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgment entered 6 February 2009 by Judge Allen Baddour in Durham County Superior Court. Heard in the Court of Appeals 1 December 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
Durham County Nos. 05 CRS 47403, 05 CRS 47404.
Timothy Lamont Uzzelle ("defendant") appeals from a judgment entered after a jury found him guilty of first degree murder pursuant to the felony murder rule. After careful review, we find no error.
Background
At approximately 11:40 p.m. on the night of 17 May 2005, law enforcement officers responded to a call that a robbery and shooting had occurred at the Hilltop Convenience Store ("Hilltop") located on Hardee Street in Durham, North Carolina. The store clerk on duty, Raja Ahmad ("Ahmad"), died from a single gunshot wound to the chest. A K9 search led police from the convenience store to Room 207 at the nearby Budget Inn where a plaid jacket was recovered. The K9 search team also discovered a cash register believed to be stolen from Hilltop in the brush surrounding the Budget Inn. Surveillance tapes were recovered from Hilltop and the Budget Inn. Defendant, Bruce Garrett ("Garrett"), and Marque Sowell ("Sowell") were identified as suspects. A latent print taken from a counter at Hilltop and two prints taken from the bottom of the cash register were those of defendant.
In his first statement to police, defendant denied any involvement in the robbery. When defendant was informed that his fingerprints were found on the cash register, he claimed that a man known as "Cap" wore defendant's jacket when he robbed Hilltop. When Cap returned with the cash register, defendant asked for some of the money and touched the cash register, leaving his prints behind. When defendant was told that Garrett had implicated him in the robbery, defendant then admitted that he had taken part in the robbery and had shot Ahmad.
Defendant signed a written statement in which he stated that Maurice Jones ("Jones") told him that he and Sowell could rob Hilltop to obtain cash. Jones gave defendant and Sowell walkie talkies and drove them to Hilltop. Defendant claimed that he ran into Hilltop first and was planning to yell "give it up" to the store occupants, but his gun had a "hairpin trigger" and it immediately went off when he entered the store. Defendant said that he did not intend to shoot Ahmad and that when the gun went off he was not aware that Ahmad had been shot. Defendant yelled for Ahmad to open the register, but when Ahmad did not respond, defendant unplugged the register and took it with him as he and Sowell fled the store. Defendant and Sowell each took one-third of the cash taken from the register and Garrett, who was acting as the lookout during the robbery, received one-third as well. In his statement, defendant said: "I got like forty or fifty dollars, because I remember saying `I'm going to smoke me a blunt.'" In addition to his confession, defendant also wrote a letter to Ahmad's family in which he apologized for shooting Ahmad and asked for their forgiveness.
At trial, several of defendant's former teachers testified regarding defendant's tumultuous upbringing in a home where his mother was a crack addict and prostitute. Defendant's father was unknown and his step-father ran an illicit liquor house. Defendant's mother died of AIDS when defendant was 10 years old. After defendant was charged in the present case, he was examined by two forensic psychiatrists, Dr. Moira Artigues ("Dr. Artigues") and Dr. James Hilkey ("Dr. Hilkey"). The doctors reviewed defendant's school records as well as the medical treatment records of defendant, his mother, and his brother. The doctors also interviewed defendant, family members, and other people who were familiar with defendant's upbringing. A battery of psychological tests were also conducted on defendant. Ultimately, Drs. Artigues and Hilkey diagnosed defendant with bipolar disorder, substance abuse, and personality disorders. Defendant was previously diagnosed with attention-deficit hyperactive disorder when he was in kindergarten; however, he was not medicated on a consistent basis. Based on their diagnoses, Drs. Artigues and Hilkey testified at trial that even though defendant planned to rob Hilltop, his ability to form the intent to kill or the intent to permanently deprive the store owner of his property was substantially impaired.
The jury was presented with a verdict sheet setting out two counts. Count one required the jury to find defendant either guilty of robbery with a firearm or not guilty. Count two required the jury to find defendant guilty of premeditated first degree murder, guilty of first degree murder on the basis of the felony murder rule, guilty of second degree murder, or not guilty. The jury found defendant guilty of robbery with a firearm and guilty of first degree murder based on the felony murder rule. The trial court sentenced defendant to the mandatory sentence of life imprisonment without parole for the first degree murder conviction and arrested judgment on the robbery with a dangerous weapon conviction. Defendant timely appealed to this Court.
Discussion I.
Defendant argues that the trial court erred in its response to the following jury question: "If we find that the defendant was guilty of armed robbery in which a murder was committed, is second — degree murder still an option?" Prior to providing his response to the jury, the trial court stated in the presence of counsel: "I think the short answer to that question is `yes' as a matter of law. Maybe a different question than what I — or how the Court responds to the question." The prosecutor argued that the trial court should re-instruct the jury. Defense counsel argued that the trial court should respond "yes." The trial court then stated: "As a forecast, I think that as a matter of law the answer to the question is `yes,' but I do believe that a different response to the jury is appropriate and that the appropriate response is to tell them — instruct them to rely on the Court's previous instructions in reaching their verdict." Defense counsel objected to that proposed response, arguing that the jury could interpret that response to mean "no." After hearing additional arguments from the parties, the trial court issued the following response to the jury's question: "[T]he Court instructs you that you are to follow the instructions as previously given you." The trial court judge also informed the jury that he would provide the instructions again verbally if the jury so desired. The jury did not ask to hear the instructions again.
N.C. Gen. Stat. § 15A-1234 (2009) states in pertinent part that "[a]fter the jury retires for deliberation, the judge may give appropriate additional instructions to . . . [r]espond to an inquiry of the jury made in open court[.]" (Emphasis added). We review the trial court's response to a jury inquiry for an abuse of discretion, recognizing that "the trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions." State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986).
Defendant specifically claims that the trial court should have responded "yes" or instructed the jury to consider each count separately. We hold that while either response would have been appropriate, the trial court did not abuse its discretion in stating to the jury that it should rely on the instructions previously given.
First, the trial court acknowledged that "yes" would have been an accurate response as a matter of law. We agree despite the fact that it is well established that "if a person is killed during the perpetration or attempted perpetration of a felony, then the defendant is guilty of first-degree felony murder — not second-degree murder or manslaughter." State v. Richardson, 341 N.C. 658, 668-69, 462 S.E.2d 492, 499 (1995). Nevertheless, the jury is free to render any verdict it so chooses, even if inconsistent, so long as it does not convict defendant of mutually exclusive offenses. State v. Mumford, 364 N.C. 394, 401, 699 S.E.2d 911, 916 (2010) ("While these verdicts are certainly inconsistent, they are not mutually exclusive. Since this case presents nothing more than mere inconsistency, defendant is not entitled to relief." (quotation marks and citation omitted)). Accordingly, the jury could have found defendant guilty of armed robbery and second degree murder despite the inconsistency of such a verdict. Consequently, the trial court could have responded "yes" to the jury's question; however, the trial court, in its discretion, decided that providing a different response would be more appropriate.
Second, defendant argues that, alternatively, the trial court should have instructed the jury to consider each count separately. Defendant relies on State v. Bromfield, 332 N.C. 24, 45, 418 S.E.2d 491, 503 (1992), where the jury asked: "`If [defendant is] found guilty of robbery with a dangerous weapon, must [the jury] automatically find him guilty of felony murder?'" The trial court responded: "If you remember the earlier instruction. You were advised, and I advise you again that you're to consider each case separately on its own merits, remembering the elements and the instruction that was given." Id. at 46, 418 S.E.2d at 503. The trial court later clarified that when he stated "case" in his response, he meant "count." Id. The Supreme Court found no error in the trial court's response to the jury's question. Id. Based on Bromfield, the trial court in this case could have told the jury to consider the two counts separately; however, Bromfield did not create a requirement that the trial court give such a response. The trial court in Bromfield merely reiterated its prior instructions, which included an instruction requiring the jury to examine each count separately, and our Supreme Court held that this response was not an abuse of discretion.
While we agree that the trial court could have responded "yes" or instructed the jury to consider each count separately, we do not agree with defendant that the trial court was mandated by our caselaw to provide one of those two responses. Defendant focuses on what the trial court should have done, but our review is limited to whether the trial court's actual response to the jury was an abuse of discretion.
We hold that the trial court did not abuse its discretion. The case of State v. Moore, 339 N.C. 456, 451 S.E.2d 232 (1994), is on point. There, the jury foreperson stated in open court: "`We have a question concerning if a death results from a shooting that took place outside of the dwelling after it was shot into, is that considered as a result of the shooting in the house since that had already occurred before.'" Id. at 463, 451 S.E.2d at 235. The trial court responded: "`[I]t would not be property [sic] for me to say anything further as to this question. The law that applies to this case is what I have given to you in the instructions in the list of things that the state has to prove and I will give it to you again.'" Id. The jury declined the trial court's offer to repeat the instructions. Id. Defendant argues that Moore is distinguishable because the trial court's original instructions in Moore were sufficient to answer the jury's question but the trial court in this case never instructed the jury that it must consider each count separately. Still, like in Moore, defendant in this case does not challenge the sufficiency of the original instructions. Defendant did not request that the trial court instruct the jury prior to deliberations that it must consider each count separately.
The case of State v. Hockett, 309 N.C. 794, 309 S.E.2d 249 (1983), though not controlling, is instructive as to this issue. There the jury asked: "Is the threat of harm or force with a deadly weapon the same as actually having or using a weapon?" Id. at 800, 309 S.E.2d at 252. The jury's question sought "clarification on a point of law" and the trial court declined to directly answer the question and did not review the elements of the crime charged. Id. at 800-01, 309 S.E.2d at 252-53. Our Supreme Court held that the trial court's response amounted to reversible error and reasoned that "the trial court should have at least reviewed the elements of the offenses if it was not going to directly answer the question as defense counsel had requested." Id. at 802, 309 S.E.2d at 253.
In the present case, the trial judge offered to re-instruct the jury. Moreover, the jury was properly instructed on the elements of the crimes and the applicability of the felony murder rule. The jury's verdict sheet clearly set out count one pertaining to armed robbery and count two pertaining to murder, which gave the jury the option of selecting first degree murder based on premeditation and deliberation, first degree felony murder, or second degree murder. Based on the instructions given, the jury was free to convict defendant of armed robbery and second degree murder. We see no abuse of discretion in the trial court's decision to refer the jury to the original instructions. The trial court further offered to re-instruct the jury, which was declined. In sum, although the trial court could have responded "yes" or could have told the jury to consider each count separately, the trial court was not required to do so. The trial court referred the jury to the original instructions, which were sufficient to answer the jury's question.
The State's argument that a response of "yes" would have been an improper instruction on jury nullification is without merit. A response of "yes" would have been an accurate statement concerning the jury's ability to find defendant guilty of armed robbery and second degree murder.
II.
Next, defendant argues that "[b]oth during cross-examination of Dr. Hilkey and closing argument, the prosecutor suggested that defense counsel improperly withheld discovery documents from Dr. Hilkey and Dr. Artigues for the purpose of preventing the jury from learning about the documents." Defendant did not object at trial to the cross-examination or the closing argument. Defendant argues that the trial court committed plain error during its cross-examination of Dr. Hilkey and that the trial court erred for not intervening ex mero motu during the prosecutor's closing argument.
As a preliminary matter, defendant incorrectly asserts, and the State does not refute, that this Court should review the cross-examination of Dr. Hilkey for plain error. "[P]lain error analysis applies only to instructions to the jury and evidentiary matters." State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000). Here, defendant is not arguing that the cross-examination led to the improper admission of evidence; rather, he argues that during the cross-examination the prosecutor improperly alluded to the existence of evidence that was not presented to Dr. Hilkey. Defendant's argument with regard to the cross-examination is identical to his argument with regard to the prosecutor's closing argument. Defense counsel did not object during cross-examination. "[S]uch a failure is ordinarily held to constitute a waiver." State v. Locklear, 294 N.C. 210, 215, 241 S.E.2d 65, 68 (1978). "Even so, where . . . the impropriety is gross it is proper for the court even in the absence of objection to correct the abuse ex mero motu." Id. (citation and quotation marks omitted). Accordingly, while plain error review is not available, we will examine the prosecutor's cross-examination to see if the questioning was so grossly improper as to require the trial court to intervene ex mero motu.
With regard to the prosecutor's closing argument:
The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (internal citation omitted). "[T]he impropriety of the argument must be gross indeed in order for th[e] Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it." State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979).
Defendant claims that the following cross-examination of Dr. Hilkey was improper:
Q: In your report you referenced the investigative report of the incident officer of the Durham Police Department, is that right?
A: Yes sir.
Q: But you can't say for certain that you got all the information that the State provided to the defense attorneys, can you?
A: I can't. I was satisfied that I had sufficient information on which to base my opinions.
Q: But you can't say that all the information that was provided to the defense attorneys was provided to you.
A: I — Again, I am convinced that I had what I needed to make the decisions that I have rendered in that opinion.
Q: Well, the question is, can you say that you were provided with all the information by the defense attorneys that was provided to them by the State?
A: I don't know whether I had all of the — I know there's thousands of pages of discovery in this case.
Q: And it's well established and it's well known within the legal community that when an expert testifies that the information that they relied upon can be — can come out in trial isn't that right?
A: Absolutely.
Q: And even though those individuals who gave statements didn't testify, these statements can come out because you relied on them.
A: It is possible, yes sir.
Q: So if there were statements that were made that were not provided to you, you could not rely upon them, is that right? If you weren't provided with those statements there's no way you could rely on them.
A: Yeah, that makes sense.
Q: Therefore, we wouldn't be able to bring that out because you didn't rely upon it.
During his closing argument, the prosecutor stated:
Dr. Hilkey told you, as well as Dr. Antigues that their opinions are based on information that was provided to them. Who is controlling that? Who is controlling the statements that you get to hear through these witness? Whoever is giving this information to them. They're not going out and getting their own information, they're relying upon what is given to them. . . . So when they give these documents, this information to the doctors to base their opinions on, they're acting in [defendant]'s best interest. We know they didn't give them everything.
During cross-examination and closing argument, the prosecutor was alluding to the fact that the experts may not have been provided all of the available documentation in this case, and, therefore, their expert opinions were not based on all of the evidence. Assuming, arguendo, that the questioning and closing remarks were improper, "the impropriety was not so gross or excessive to compel us to hold that the trial judge abused his discretion in not correcting them or that defendant is entitled to a new trial." Id. Although the experts' opinions as to defendant's ability to form the intent to commit the crimes charged were crucial to defendant's case, we do not see how alluding to documents not provided to the experts could have influenced the jury to such an extent that the outcome of this case would have been different had the prosecutor not made the statements. The overwhelming evidence established that defendant robbed Hilltop with a dangerous weapon which resulted in the death of Ahmad. State v. Jordan, 49 N.C. App. 561, 569, 272 S.E.2d 405, 411 (1980) ("[I]n view of the overwhelming evidence of defendant's guilt presented by the State in this case, the prosecutor's remarks could not have contributed to conviction."). In sum, we hold that the prosecutor's questions during cross-examination and statements made during closing argument were not so grossly improper that the trial court was required to intervene ex mero motu.
III.
Finally, defendant argues that the trial court's sentence of life imprisonment without the possibility of parole amounted to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. Based on the current statutory mandates and controlling caselaw, we disagree.
N.C. Gen. Stat. § 14-17 (2009) mandates a sentence of life imprisonment without parole when a defendant is convicted of first degree murder. This Court has previously rejected an argument that life imprisonment without parole for felony murder violates the Eighth Amendment's prohibition against cruel and unusual punishment. State v. Hightower, 168 N.C. App. 661, 669-70, 609 S.E.2d 235, 240-41 (2005). Defendant cites Graham v. Florida, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) where the Supreme Court held that life imprisonment without parole was unconstitutional as applied to a juvenile in a non-homicide case. Graham is inapposite to the present case for obvious reasons — defendant is not a juvenile and he was convicted of a homicide. Defendant references dicta from Graham where the Court discussed how juvenile offenders are less culpable than adult offenders due to their relative immaturity. Defendant argues that he was only 18 years old at the time of the killing and had the developmental age of a young juvenile due to his upbringing and various mental illnesses. We are unpersuaded by defendant's arguments and are bound by our previous holding on this issue. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Conclusion
Based on the foregoing discussion, we hold that the trial court did not err in its response to the jury's question and the trial court did not err in failing to intervene ex mero motu during the prosecutor's cross-examination of Dr. Hilkey or at closing argument. We further hold that defendant's sentence did not violate the Eighth Amendment.
No Error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).