Opinion
No. COA09-510.
Filed February 2, 2010.
Guilford County Nos. 06 CRS 080423, 08 CRS 08024422-23, 08 CRS 024455.
Appeal by defendant from judgments entered 23 September 2008 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 14 October 2009.
Attorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State. Haral E. Carlin for defendant.
Donald Jay Young (defendant) appeals his convictions for the crimes of first-degree murder, first-degree sex offense, first-degree burglary, robbery with a dangerous weapon, and felonious larceny. For the reasons stated below, we hold that defendant received a trial free from error.
I. Background
On or about 27 May 2006, Velma Busch (Velma) was stabbed to death in her home. Authorities were summoned to Velma's house by an anonymous 911 call at 5:45 a.m. on 27 May 2006, in which the caller told the operator, "I left you something at 4103 Summer Glenn Court. . . . You'll see when you get there." When police arrived, they found Velma's body in her bedroom. A blanket covered her body and a pillow covered her head. Her legs were tied together and a banana had been inserted in her vagina. The telephone line to the house had been cut on the outside and police found evidence of forced entry into Velma's home through a side door. The autopsy confirmed that Velma died as a result of multiple stab wounds to her head, neck, chest, and arms. The 911 phone call had been made from a nearby pay phone.
Velma's daughter, Candace Busch (Candace), had known defendant for eleven years at the time of her mother's death. Candace and defendant had two children together, but Candace had taken her children and moved into her mother's home from October 2004 to April 2005. Defendant was not allowed in Velma's home, but would still tap on Candace's window and call her cell phone. He once told her that it would be easy for him to "get to" Candace by breaking the glass panels in the side door of Velma's house. He also told her that she was "grandfathered in" and their relationship "was to the death." Candace understood these statements to mean that she "wasn't going to leave the relationship alive."
The witness's name has been altered to protect her identity.
Nevertheless, Candace resumed her relationship with defendant in April 2005 and lived with him until 14 May 2006, when she moved out of their apartment and into a women's shelter. After she moved out, defendant repeatedly called her cell phone from pay phones in the middle of the night. Candace testified that he had called her from pay phones in the past and that she knew that he was using pay phones because she could hear the automated messages to deposit more money. Even after Candace changed her cell phone number twice, defendant continued to call her. She won custody of their two children on 24 May 2006 and defendant called her and told her that she had "set him up." She testified that she always knew when she was speaking with defendant, even when he did not identify himself, because she knew his voice. She explained, "I dated him for 11 years. I know his voice. Even if he was playing on the phone I know his voice."
Candace identified defendant as the caller recorded on the 911 audiotape directing authorities to Velma's address. Defendant fled the state. Police found him at his mother's house in Riverdale, Maryland. Maryland police arrested him and held him at the Prince George Detention Center in Maryland until Greensboro police could retrieve him. A Maryland officer testified that defendant was cooperative, but that "he didn't ask why he was being arrested," which the officer observed to be "a little unusual[.]"
Detective Michael Conwell of the Greensboro Police Department met with defendant at the detention center and attempted to advise defendant of his Miranda rights. Detective Conwell testified that after he entered the interview room, he told defendant that he had taken out the warrant on defendant and wanted to speak with him about the "incident," but first needed to advise him of his Miranda rights. Detective Conwell testified that defendant replied, "[W]hy don't you tell me what you got." Detective Conwell then explained that he couldn't tell defendant anything until they "had the Miranda issue resolved in one way or another." Detective Conwell attempted to review defendant's Miranda rights eight or ten times, but defendant interrupted him each time, demanding to know what information Detective Conwell had about defendant. Detective Conwell presented the form that the Greensboro Police Department uses to advise people of their rights, but he could not read even the first paragraph because of defendant's interruptions. This continued for the better part of an hour until Detective Conwell decided that "it was in the best interest of all concerned that [they] just kind of quit it at that point[.]"
At trial, defendant testified on his own behalf. He denied killing Velma Busch and making the 911 phone call. He admitted calling Candace after she had changed her cell phone number. He obtained her new number by giving her social security number to the cell phone provider. He also admitted that he called her from pay phones, but explained that he had done so because he did not have enough minutes on his cell phone plan to make the calls. He testified that he spent at most twenty minutes in the interview room with Detective Conwell and that Detective Conwell had a piece of paper with him, but hid the contents of the sheet so that defendant could not see them. Defendant testified that Detective Conwell told defendant that he would not get the death penalty if he signed the sheet. Defendant testified, "when I saw like he was getting attitude, you know what, I'll tell you what, I'm through talking."
A jury convicted defendant of first-degree murder, first-degree sex offense, first-degree burglary, robbery with a dangerous weapon, and felonious larceny. Defendant was sentenced to life imprisonment without parole for first-degree murder; 288 to 355 months for first-degree sex offense; 77 to 102 months for first-degree burglary and larceny, which the trial court consolidated for judgment; and 77 to 102 months for robbery with a dangerous weapon. All sentences are to run consecutively. Defendant now appeals.
II. Motion for Mistrial
Defendant first argues that the trial judge erred by denying his motion for mistrial following certain testimony by Candace. Before Candace testified, the trial judge held a 404(b) hearing to determine the admissibility of Candace's potential testimony. During the 404(b) hearing, the prosecutor did not ask Candace whether she had engaged in consensual sex acts with defendant during which he bound her. However, during Candace's testimony, the prosecutor asked, "[Candace], are you aware of how your mother was bound?" Candace answered in the affirmative. The prosecutor then asked, "Have you ever been bound in your relationship with defendant?" Defense counsel immediately objected and the trial judge asked the jury to leave the courtroom so that he could confer with the attorneys. The trial judge then chastised the prosecutor for beginning "that examination without letting the Court know that you're going to get into an area of potential 404B or other matters[.]"
The trial judge immediately conducted a second voir dire to determine the nature of Candace's testimony on this subject. The voir dire revealed that Candace and defendant had engaged in consensual sex acts during which defendant bound Candace with stockings and inserted food objects such as cucumbers and hot dogs into her vagina. Defense counsel moved for a mistrial based upon the prosecutor's question in front of the jury. Outside the presence of the jury, the trial judge sustained defendant's objection to the question, finding that the testimony would be more prejudicial than probative. However, the trial judge denied defendant's motion for mistrial, explaining, "the Court, after further reflection, will find that even though the question was placed out there, there's an immediate objection, an immediate sustaining of the objection, the question was not answered and the jury was sent out."
Defendant now argues that the trial court erred by denying his motion for mistrial because the jury hearing the prosecutor's question irreparably prejudiced defendant. He argues that the question "left the inference very clear that [defendant] had bound and inserted items into the vagina of his girlfriend[.]" We disagree.
We review a trial court's denial of a motion for mistrial for an abuse of discretion. State v. Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000). "N.C. Gen. Stat. § 15A-1061 provides in part that the judge may declare a mistrial if conduct inside or outside the courtroom results in substantial or irreparable prejudice to the defendant's case." Id. Although defendant asserts that the prosecutor's unanswered question left a clear impression in the minds of the jurors that defendant had bound Candace and inserted food items into her vagina during sex, we cannot see the connection between asking whether defendant had previously bound Candace and whether defendant had previously inserted food items into her vagina. Although the prosecutor did elicit this information from Candace during voir dire, the jury never heard it. Accordingly, we hold that defendant was not irreparably prejudiced by the prosecutor's question and that the trial court did not abuse its discretion by denying defendant's motion for mistrial.
III. Motion to Suppress
Defendant next argues that the trial court erred by denying his motion to suppress the statements that he made to Detective Conwell while in custody in Maryland. After a voir dire hearing to determine the nature of Detective Conwell's testimony, the trial court made findings of fact, including the following:
The Court will find that Detective Conwell identified himself, that he indicated to the defendant that he had [a] warrant taken out regarding the incident in this case and that he needed to advise the defendant of his Miranda Rights, at which time the defendant responded with, quote, you tell me what you got.
The Court will find further that Detective Conwell explained to the defendant that he could not talk to him about any subject without advising him first of his Miranda Rights since he was in custody at the time.
The Court will find that the evidence reveals that the defendant continued to insist that the detective would have to tell him what he had before he could administer the Miranda Rights. This continued over the remainder of the interview and when it became clear that the interview was not going to go past this first point, the interview, to the extent it can be called that, terminated.
The Court will find based upon these findings of fact that the, quote, you tell me what you got, uttered by the defendant, was not in response to any interrogation initiated by the officer in this case.
The Court will find that the officer was simply attempting to administer the Miranda Rights at which time the defendant said, you tell me what you got. This was not, again, in response to any interrogations or question posed by the detective.
The Court will find that this statement was clearly voluntary and that it was volunteered by the defendant and was in an effort to-obviously to find out what the detective had.
The Court will find that this statement, again, was voluntary, it was not given in response to questioning and was not due to any show of force or duress and was clearly the defendant's attempt to discover the situation prior to making any decision about giving a statement.
The Court will find based upon these findings that the admission of the statement attributed to the defendant, that being you tell me what you got, does not violate any of the defendant's constitutional rights and the Court would overrule the objection to introduction of the statement as it was made to the detective as the defendant was situated in the Prince George's County [D]etention [C]enter.
Defendant now argues that the trial court failed to consider that defendant's "choice not to answer questions could not be admitted as evidence against him to show his guilt" under the Fifth Amendment. We cannot see how Detective Conwell's testimony or the trial court's finding of fact implicated defendant's right to remain silent. Defendant's statements to Detective Conwell were voluntarily given and were not in response to any advisement of his right to remain silent. The statements were properly admitted against him and did not affect his constitutional right to remain silent. Accordingly, we hold that this argument lacks merit.
IV. Closing Statement
Defendant next argues that the prosecutor's closing statement improperly included her personal opinion and that the trial court committed plain error by failing to intervene ex mero motu during the statement. We disagree.
During the majority of her closing statement, the prosecutor used a rhetorical device of posing questions to herself as if she were a juror asking the prosecutor questions, and then answering them. Many of these questions began with the prosecutor addressing herself as "Madam DA" or "Ms. Crump." About ten pages into the thirty-page transcript of the prosecutor's closing statement, the prosecutor made the following mock colloquy:
So, Ms. Crump, what do you think happened? Well, I think he took his time in that house. And made sure that things were right. I think he took his time to try to get answers. I think he took his time to stage the scene the way he wanted it to be staged. I think he took his time to send a message to [Candace] Busch.
Well, Ms. Crump, what kind of message are you talking about? Well, let's see. If I couldn't get you, I'm going to get someone that you love.
The prosecutor ended her closing statement by saying, "He's guilty. He's guilty. He's guilty."
We first note that the proper standard of review for a trial court's failure to intervene in closing arguments ex mero motu is gross impropriety, not plain error. State v. Garcell, 363 N.C. 10, 61, 678 S.E.2d 618, 650 (2009). "[O]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken." State v. Mann, 355 N.C. 294, 307, 560 S.E.2d 776, 785 (2002) (citations and quotation marks omitted). "In determining whether [an] argument was grossly improper, this Court considers the context in which the remarks were made, as well as their brevity relative to the closing argument as a whole." State v. Taylor, 362 N.C. 514, 536, 669 S.E.2d 239, 259 (2008) (quotations and citations omitted).
Our general statutes limit attorneys' statements during closing arguments:
During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.
N.C. Gen. Stat. § 15A-1230(a) (2007). "[C]ounsel may not place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs and personal opinions not supported by the evidence[.]" State v. Augustine, 359 N.C. 709, 723, 616 S.E.2d 515, 526 (2005) (quotations and citations omitted).
Here, the prosecutor's first-person response to her hypothetical question, "Ms. Crump, what do you think happened?" did not place before the jury incompetent or prejudicial matters that were not supported by the evidence by injecting her personal beliefs into the closing statement. It was reasonable for the jury to infer from the evidence that defendant took his time in the house, staged the crime scene, and sought to send a message to Candace Busch. The prosecutor's presentation of these otherwise appropriate inferences was inartful and awkward. However, having considered the statement in context, we find no gross impropriety and hold that the trial court did not err by not intervening ex mero motu.
V. Lesser Included Offense
In his final argument, defendant contends that the trial court committed plain error by not including lesser-included offenses of first-degree murder in the jury charge. "In criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(c)(4) (2008). "Plain error is error `so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Leyva, 181 N.C. App. 491, 499, 640 S.E.2d 394, 399 (2007) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)).
The trial court explained its decision not to instruct the jury on any lesser-included offenses by explaining that "in this case the evidence would show that the defendant . . . had no involvement in this whatsoever, so there would apparently be no lessor included offenses to be considered" because "defendant's position is that . . . [h]e wasn't there."
The well-established rule for submission of second-degree murder as a lesser-included offense of first-degree murder is: If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
State v. Locklear, 363 N.C. 438, 454-55, 681 S.E.2d 293, 306 (2009) (quotations and citations omitted). Here, there was no conflicting evidence as to any of the elements and the trial court's comment is consistent with that conclusion. Accordingly, the trial court did not err by not instructing the jury on any lesser-included offenses of first-degree murder. We apply the same logic to the trial court's decision not to instruct the jury on any lesser-included offenses of first-degree sexual assault and again find no error. See State v. Hensley, 91 N.C. App. 282, 284, 371 S.E.2d 498, 499 (1988) ("Since there was no evidence that the sexual offense was not accomplished the court was not required to instruct the jury on attempting to commit the offense.").
VI. Conclusion
For the foregoing reasons, we hold that defendant received a trial free from error. No error.
Judges STEELMAN and HUNTER, JR., Robert N., concur.
Report per Rule 30(e).