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No. 510A99 SIXTEEN-B DISTRICT

SUPREME COURT OF NORTH CAROLINA

****************************************************

STATE OF NORTH CAROLINA )
)
v. ) From Robeson
)
DANIEL CUMMINGS, JR. )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

****************************************************
INDEX

QUESTIONS PRESENTED ............................................................................................................1

I. DID THE TRIAL COURT VIOLATE DEFENDANT'S STATUTORY AND
CONSTITUTIONAL RIGHTS BY EXCUSING SIX PROSPECTIVE
JURORS AFTER UNRECORDED, EX PARTE DISCUSSIONS? ..............................1

II. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY FAILING TO CALL JURORS
RANDOMLY FOR VOIR DIRE AND BY PROCEEDING IN THE
ABSENCE OF FOUR POTENTIAL JURORS? ...........................................................1

III. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION FOR EXPERT
SERVICES AND HIS MOTION TO SUPPRESS INVOLUNTARY
STATEMENTS? ............................................................................................................1

IV. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY THAT THE
DEFENDANT HAD ADMITTED FACTS RELATED TO THE CHARGE
OF FIRST DEGREE MURDER, AND IN FAILING TO INTERVENE TO
PREVENT IMPROPER ARGUMENT? .......................................................................1

V. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY ADMITTING EVIDENCE THAT
DEFENDANT HAD PREVIOUSLY BEEN SENTENCED TO DEATH IN
A SEPARATE CAPITAL CASE?.................................................................................2

VI. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY SUBMITTING THE AGGRAVATING
FACTOR SPECIFIED UNDER N.C.G.S. § 15A-2000(E)(6) TO THE
SENTENCING JURY? ..................................................................................................2

VII. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY FAILING TO SUBMIT REQUESTED
INSTRUCTIONS ON MITIGATING CIRCUMSTANCES?.......................................2

VIII. DID THE TRIAL COURT VIOLATE DEFENDANT'S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION TO DISMISS
FOR INSUFFICIENCY OF INDICTMENT AND HIS MOTION TO
STRIKE THE DEATH PENALTY? .............................................................................2

IX. WERE DEFENDANT’S STATUTORY AND CONSTITUTIONAL RIGHTS
VIOLATED BY ADMISSION INTO EVIDENCE OF ILLEGALLY-
OBTAINED STATEMENTS? ......................................................................................2
ii

A. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION TO
SUPPRESS FRUITS OF ILLEGAL DETENTION? ....................................................2

B. DID THE TRIAL COURT VIOLATE DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTIONS TO
SUPPRESS INVOLUNTARY STATEMENTS AND STATEMENTS MADE
DURING DELAYS IN PRESENTING DEFENDANT TO MAGISTRATE
AND IN PROVIDING FOR COMMUNICATION WITH COUNSEL? .....................2

X. DID THE TRIAL COURT VIOLATE DEFENDANT'S STATUTORY AND
CONSTITUTIONAL RIGHTS BY EXCUSING FOURTEEN
PROSPECTIVE JURORS FOR CAUSE ON THE GROUNDS THAT THEY
WOULD BE UNABLE TO RETURN A SENTENCE OF DEATH? ..........................2

XI. DID THE TRIAL COURT COMMIT REVERSIBLE CONSTITUTIONAL
ERROR BY FAILING TO INSTRUCT JURORS THAT THEY “MUST”
RATHER THAN “MAY” CONSIDER MITIGATING CIRCUMSTANCES
WHEN DECIDING ISSUES THREE AND FOUR DURING THEIR JURY
DELIBERATIONS? ......................................................................................................3

XII. DID THE TRIAL COURT COMMIT REVERSIBLE CONSTITUTIONAL
ERROR BY PLACING THE BURDEN OF PROOF ON DEFENDANT TO
SATISFY THE JURY WITH RESPECT TO MITIGATING
CIRCUMSTANCES AND FAILING TO INSTRUCT JURORS THAT
PROOF BY THE PREPONDERANCE OF THE EVIDENCE IS PROOF
WHICH INDICATES THAT IT IS MORE LIKELY THAN NOT THAT A
MITIGATING CIRCUMSTANCE EXISTS? ...............................................................3

XIII. DID THE TRIAL COURT COMMIT REVERSIBLE CONSTITUTIONAL
ERROR BY ERRONEOUSLY INSTRUCTING JURORS THEY COULD
FIND THAT A MITIGATING CIRCUMSTANCE EXISTS AND
SIMULTANEOUSLY FIND THE MITIGATING CIRCUMSTANCE HAS
NO MITIGATING VALUE? ........................................................................................3

XIV. DID THE TRIAL COURT COMMIT PLAIN ERROR BY ERRONEOUSLY
INSTRUCTING THE JURY THAT UNANIMITY IS REQUIRED TO
ANSWER “NO” TO ISSUES I, III, & IV ON THE ISSUES AND
RECOMMENDATIONS SENTENCING FORM? .......................................................3

XV. DID THE TRIAL COURT COMMIT PLAIN ERROR BY FAILING TO
INSTRUCT THE JURY THAT UNANIMITY IS REQUIRED TO ANSWER
“YES” TO ISSUE IV ON THE ISSUES AND RECOMMENDATIONS
SENTENCING FORM? ................................................................................................3

XVI. DID THE TRIAL COURT COMMIT REVERSIBLE CONSTITUTIONAL
ERROR BY INSTRUCTING THE JURY ON THE (E)(9) AGGRAVATING
FACTOR? 3
iii

XVII. DID THE TRIAL COURT COMMIT REVERSIBLE CONSTITUTIONAL
ERROR BY INSTRUCTING THE JURY ON THE (E)(9) AGGRAVATING
FACTOR? 3

XVIII. DID THE TRIAL COURT COMMIT REVERSIBLE CONSTITUTIONAL
ERROR BY SENTENCING DEFENDANT TO DEATH BECAUSE THE
DEATH PENALTY IS INHERENTLY CRUEL AND UNUSUAL; THE
NORTH CAROLINA CAPITAL SENTENCING SCHEME IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD; AND THE
DEATH SENTENCE IN THIS CASE WAS NOT SUPPORTED BY THE
EVIDENCE, WAS DISPROPORTIONATE, AND WAS IMPOSED UNDER
THE INFLUENCE OF PASSION, PREJUDICE, AND OTHER
ARBITRARY FACTORS? ............................................................................................4

STATEMENT OF THE CASE........................................................................................................4

STATEMENT OF THE FACTS .....................................................................................................5

ARGUMENT .................................................................................................................................12

I. THE TRIAL COURT VIOLATED DEFENDANT'S STATUTORY AND
CONSTITUTIONAL RIGHTS BY EXCUSING SIX PROSPECTIVE
JURORS AFTER UNRECORDED, EX PARTE DISCUSSIONS. .............................12

II. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY FAILING TO CALL JURORS
RANDOMLY FOR VOIR DIRE AND BY PROCEEDING IN THE
ABSENCE OF FOUR POTENTIAL JURORS...........................................................25

III. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION FOR EXPERT
SERVICES AND HIS MOTION TO SUPPRESS INVOLUNTARY
STATEMENTS............................................................................................................29

IV. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY THAT THE
DEFENDANT HAD ADMITTED FACTS RELATED TO THE CHARGE
OF FIRST DEGREE MURDER, AND IN FAILING TO INTERVENE TO
PREVENT IMPROPER ARGUMENT. ......................................................................35

V. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY ADMITTING EVIDENCE THAT
DEFENDANT HAD PREVIOUSLY BEEN SENTENCED TO DEATH IN
A SEPARATE CAPITAL CASE. ...............................................................................42

VI. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY SUBMITTING THE AGGRAVATING
FACTOR SPECIFIED UNDER N.C.G.S. § 15A-2000(E)(6) TO THE
SENTENCING JURY. ................................................................................................52
iv

VII. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY FAILING TO SUBMIT REQUESTED
INSTRUCTIONS ON MITIGATING CIRCUMSTANCES. .....................................63

VIII. THE TRIAL COURT VIOLATED DEFENDANT'S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION TO DISMISS
FOR INSUFFICIENCY OF INDICTMENT AND HIS MOTION TO
STRIKE THE DEATH PENALTY. ............................................................................67

IX. DEFENDANT’S STATUTORY AND CONSTITUTIONAL RIGHTS WERE
VIOLATED BY ADMISSION INTO EVIDENCE OF ILLEGALLY-
OBTAINED STATEMENTS. .....................................................................................73

A. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION TO
SUPPRESS FRUITS OF ILLEGAL DETENTION. ...................................................73

B. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTIONS TO
SUPPRESS INVOLUNTARY STATEMENTS AND STATEMENTS MADE
DURING DELAYS IN PRESENTING DEFENDANT TO MAGISTRATE
AND IN PROVIDING FOR COMMUNICATION WITH COUNSEL. ....................73

X. THE TRIAL COURT VIOLATED DEFENDANT'S STATUTORY AND
CONSTITUTIONAL RIGHTS BY EXCUSING FOURTEEN
PROSPECTIVE JURORS FOR CAUSE ON THE GROUNDS THAT THEY
WOULD BE UNABLE TO RETURN A SENTENCE OF DEATH. .........................74

XI. THE TRIAL COURT COMMITTED REVERSIBLE CONSTITUTIONAL
ERROR BY FAILING TO INSTRUCT JURORS THAT THEY “MUST”
RATHER THAN “MAY” CONSIDER MITIGATING CIRCUMSTANCES
WHEN DECIDING ISSUES THREE AND FOUR DURING THEIR JURY
DELIBERATIONS. .....................................................................................................77

XII. THE TRIAL COURT COMMITTED REVERSIBLE CONSTITUTIONAL
ERROR BY PLACING THE BURDEN OF PROOF ON DEFENDANT TO
SATISFY THE JURY WITH RESPECT TO MITIGATING
CIRCUMSTANCES AND REFUSING TO INSTRUCT JURORS THAT
PROOF BY THE PREPONDERANCE OF THE EVIDENCE IS PROOF
WHICH INDICATES THAT IT IS MORE LIKELY THAN NOT THAT A
MITIGATING CIRCUMSTANCE EXISTS. ..............................................................78

XIII. THE TRIAL COURT COMMITTED REVERSIBLE CONSTITUTIONAL
ERROR BY ERRONEOUSLY INSTRUCTING JURORS THEY COULD
FIND THAT A MITIGATING CIRCUMSTANCE EXISTS AND
SIMULTANEOUSLY FIND THE MITIGATING CIRCUMSTANCE HAS
NO MITIGATING VALUE. .......................................................................................79
v

XIV. THE TRIAL COURT COMMITTED PLAIN ERROR BY ERRONEOUSLY
INSTRUCTING THE JURY THAT UNANIMITY IS REQUIRED TO
ANSWER “NO” TO ISSUES I, III, & IV ON THE ISSUES AND
RECOMMENDATIONS SENTENCING FORM. .....................................................80

XV. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
INSTRUCT THE JURY THAT UNANIMITY IS REQUIRED TO ANSWER
“YES” TO ISSUE IV ON THE ISSUES AND RECOMMENDATIONS
SENTENCING FORM. ...............................................................................................80

XVI. THE TRIAL COURT COMMITTED REVERSIBLE CONSTITUTIONAL
ERROR BY INSTRUCTING THE JURY ON THE (E)(9) AGGRAVATING
FACTOR. 80

XVII. THE TRIAL COURT COMMITTED REVERSIBLE CONSTITUTIONAL
ERROR BY INSTRUCTING THE JURY ON THE (E)(9) AGGRAVATING
FACTOR. 81

XVIII. THE TRIAL COURT COMMITTED REVERSIBLE CONSTITUTIONAL
ERROR BY SENTENCING DEFENDANT TO DEATH BECAUSE THE
DEATH PENALTY IS INHERENTLY CRUEL AND UNUSUAL; THE
NORTH CAROLINA CAPITAL SENTENCING SCHEME IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD; AND THE
DEATH SENTENCE IN THIS CASE WAS NOT SUPPORTED BY THE
EVIDENCE, WAS DISPROPORTIONATE, AND WAS IMPOSED UNDER
THE INFLUENCE OF PASSION, PREJUDICE, AND OTHER
ARBITRARY FACTORS. ..........................................................................................83

CONCLUSION ..............................................................................................................................84

CERTIFICATE OF FILING AND SERVICE ..............................................................................85
vi

TABLE OF AUTHORITIES

CASES

288 N.C. 699, 713, 220 S.E.2d 283, 292 (1975) ........................................................................... 43

336 N.C. 229, 241, 443 S.E.2d 48, 53 (1994), cert. denied, 513 U.S. 1104, 130
L.Ed.2d 676 (1995) ........................................................................................................... 44

346 N.C. 291, 333, 488 S.E.2d 550, 575 (1997), cert. denied, 522 U.S. 1057, 139
L.Ed.2d 654 (1998) ........................................................................................................... 59

395 U.S. 711, 23 L.Ed.2d 656 (1969) ........................................................................................... 53

462 U.S. 862, 77 L.Ed.2d 235 (1982) ........................................................................................... 53

Ake v. Oklahoma,
470 U.S. 68, 84 L.Ed.2d 53 (1985) ................................................................................... 34

Apprendi v. New Jersey, ___ U.S. ___,
147 L.Ed.2d 435 (2000) .............................................................................................. 54, 68

Arizona v. Fulminante,
499 U.S. 279, 113 L.Ed.2d 302 (1991) ............................................................................. 72

Batson v. Kentucky,
476 U.S. 9, 90 L.Ed.2d 69 (1986) ..................................................................................... 28

Berkemer v. McCarty,
468 U.S. 420, 82 L.Ed.2d 317 (1984) .............................................................................. 30

Burnham v. Superior Court of California,
495 U.S. 604, 109 L.Ed.2d 631 (1990) ............................................................................. 72

Caldwell v. Mississipi,
472 U.S. 320, 86 L.Ed.2d 231 (1985) ................................................................... 43, 47, 83

Chapman v. California,
386 U.S. 18, 17 L.Ed.2d 705 (1967) ................................................................................. 12

Church v. State,
40 N.C. App. 429. 253 S.E.2d 473 (1979), aff'd, 299 N.C. 399, 263 S.E.2d
726 (1980) ......................................................................................................................... 71

Cole v. Arkansas,
333 U.S. 196, 201, 92 L.Ed. 644, 647 (1948) ................................................................... 69
vii

Darden v. Wainwright,
477 U.S. 168, 91 L.Ed.2d 144 (1986) ............................................................................... 40

Davis v. Georgia,
429 U.S. 122, 50 L.Ed.2d 339 (1976) ............................................................................... 77

Dickerson v. United States, ___ U.S. ___,
147 L.Ed.2d 405 (2000) .................................................................................................... 30

Eddings v. Oklahoma,
455 U.S. 104, 71 L.Ed.2d 1 (1982) ................................................................................... 80

Engle v. Isaac,
456 U.S. 107, 71 L.Ed.2d 783 (1982) ........................................................................ passim

Evitts v. Lucey,
469 U.S. 387, 83 L.Ed.2d 821 (1985) ............................................................................... 24

Ford v. Wainwright,
477 U.S. 399, 91 L.Ed.2d 335 (1986) ......................................................................... 64, 67

Furman v. Georgia,
408 U.S. 238, 33 L.Ed.2d 346 (1972) ......................................................................... 77, 83

Godfrey v. Georgia,
446 U.S. 420, 64 L.E.2d 398 (1980) ................................................................................. 82

Gray v. Mississippi,
481 U.S. 648, 95 L.Ed.2d 622 (1987) ................................................................... 20, 27, 75

Hardy v. United States,
375 U.S. 277, 11 L.Ed.2d 331 (1964) ............................................................................... 24

Herring v. United States,
422 U.S. 853, 45 L.Ed.2d 593 (1975). .............................................................................. 69

Hodgson v. Vermont,
168 U.S. 262, 42 L.Ed. 461 (1897) ................................................................................... 69

Hopt v. Utah,
110 U.S. 574, 28 L.Ed. 262 (1884) ................................................................................... 12

In re Winship, 397 U.S. 35, 25 L.Ed.2d 368 (1970) ..................................................................... 60

State v. Smith,
320 N.C. 404, 358 S.E.2d 329 (1987) ............................................................................... 48

Irwin v. Dowd,
366 U.S. 717, 6 L.Ed.2d 751 (1961) ................................................................................. 25
viii

Jackson v. Virginia,
443 U.S. 307, 61 L.Ed.2d 560 (1979) ............................................................................... 64

Johnson v. Zerbst,
304 U.S. 458, 82 L.Ed. 1461 (1938) ................................................................................ 30

Jones v. United States,
526 U.S. __, 143 L.Ed.2d 311 (1999) ......................................................................... 61, 68

Leandro v. State,
346 N.C. 336, 488 S.E.2d 249 (1997) ............................................................................... 70

Lockett v. Ohio,
438 U.S. 586, 57 L.Ed.2d 973 (1978) ................................................................... 45, 65, 80

Lockhart v. McCree,
476 U.S. 162, 90 L.Ed.2d 137 (1986) ............................................................................... 76

M.L.B. v. S.L.J.,
519 U.S. 102, 136 L.Ed.2d 473 (1996) ............................................................................. 71

Maynard v. Cartwright,
486 U.S. 356, 100 L.Ed.2d 372 (1988) ............................................................................. 82

Michigan v. Jackson,
475 U.S. 625, 633, 89 L.Ed.2d 631 (1986) ................................................................. 30, 66

Miranda v. Arizona,
384 U.S. 436, 16 L.Ed.2d 694 (1966) ........................................................................... 8, 30

Penry v. Lynaugh,
492 U.S. 302, 106 L.Ed.2d 256 (1992) ............................................................................. 80

Phelps v. Phelps,
337 N.C. 344, 446 S.E.2d 17 (1994) ................................................................................. 70

Romano v. Oklahoma,
512 U.S. 1, 129 L.Ed.2d. 1 (1994) .................................................................................... 45

Romer v. Evans,
517 U.S. 620, 134 L.Ed.2d 855 (1996) ............................................................................. 70

Scott v. McNeal,
154 U.S. 34, 38 L.Ed. 896 (1893) ..................................................................................... 72

Simmons v. United States,
390 U.S. 377, 19 L.Ed.2d 1247 (1968) ............................................................................. 66

Skinner v. Oklahoma,
316 U.S. 535, 86 L.Ed. 1655 (1942) ................................................................................. 69
ix

State v. Adams,
335 N.C. 401, 439 S.E.2d 760 (1994) ............................................................................... 19

State v. Adams,
347 N.C. 48, 490 S.E.2d 220 (1997), cert. denied, 522 U.S. 1096, 139
L.Ed.2d 878 (1998) ........................................................................................................... 43

State v. Apprendi,
159 N.J. 7, 731 A.2d 485 (1999)....................................................................................... 60

State v. Ashe,
314 N.C. 28, 331 S.E.2d 652 (1985) ................................................................................. 27

State v. Ball,
344 N.C. 290, 474 S.E.2d 345 (1996), cert. denied, 520 U.S. 1180, 137
L.Ed.2d 561 (1997) ........................................................................................................... 55

State v. Banks,
263 N.C. 784, 140 S.E.2d 318 (1965) ............................................................................... 72

State v. Barrow,
350 N.C. 640, 517 S.E.2d 374 (1999) ............................................................................... 27

State v. Boyd,
311 N.C. 408, 319 S.E.2d 189 (1984), cert. denied, 417 U.S. 1030, 85
L.Ed.2d 342 (1985) ........................................................................................................... 82

State v. Boyd,
332 N.C. 101, 418 S.E. 2d 471 (1992) ........................................................................ 12, 24

State v. Braxton, ___ N.C. ___,
531 S.E.2d 428, 2000 LEXIS 524 (No. 2A98, 13 July 2000) ................................... 26, 73

State v. Britt,
288 N.C. 699, 220 S.E.2d 283 (1975) ............................................................................... 40

State v. Brown,
306 N.C. 151, 293 S.E.2d 569 (1982), cert. denied, 459 U.S. 1080, 74
L.Ed.2d 642 (1982) ........................................................................................................... 44

State v. Campbell,
51 N.C. App. 418, 276 S.E.2d 726 (1981) ........................................................................ 26

State v. Carey,
285 N.C. 497, 206 S.E.2d 213 (1974) ............................................................................... 25

State v. Chandler,
342 N.C. 742, 467 S.E.2d 636, cert. denied, 519 U.S. 875, 136 L.Ed.2d
133 (1996) ......................................................................................................................... 54
x

State v. Cherry,
298 N.C. 86, 257 S.E.2d 551 (1979) ............................................................... 45, 53, 65, 82

State v. Colbert,
311 N.C. 283, 316 S.E.2d 79 (1984) ................................................................................. 27

State v. Cole,
331 N.C. 272, 415 S.E.2d 716 (1992) ............................................................................... 21

State v. Cummings,
346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1057, 139
L.Ed.2d 654 (1998) ................................................................................... 11, 45, 65, 74, 83

State v. Earnhardt,
307 N.C. 62, 296 S.E.2d 649 (1982) ................................................................................. 64

State v. Exum,
343 N.C. 291, 470 S.E.2d 333 (1996) ............................................................................... 12

State v. Fullwood,
323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated on other grounds,
494 U.S. 1022, 108 L.Ed.2d 602 (1990) ........................................................................... 80

State v. Gibson,
333 N.C. 29, 424 S.E.2d 95 (1992) ................................................................................... 71

State v. Golphin, ___ N.C. ___, ___ S.E.
2d ___, 2000 LEXIS 618 (No. 441A98, 25 August 2000) ............................................... 26

State v. Green,
329 N.C. 686, 406 S.E.2d 852 (1991) ............................................................................... 85

State v. Hare,
243 N.C. 262, 90 S.E.2d 550 (1955) ................................................................................. 69

State v. Hartman,
344 N.C. 445, 476 S.E.2d 328, (1996), cert. denied, 520 U.S. 1201, 137
L.Ed.2d 708 (1997) ........................................................................................................... 18

State v. Hedgepeth,
350 N.C. 776, 517 S.E.2d 605 (1999), cert. denied, ___ U.S. ___, 146
L.Ed.2d 223 (2000) ............................................................................................... 23, 63, 67

State v. Hucks,
323 N.C. 574, 374 S.E.2d 240 (1988) ............................................................................... 27

State v. Jennings,
333 N.C. 579, 430 S.E.2d 188, cert. denied, 510 U.S. 1028, 126 L.Ed.2d
602 (1993) ......................................................................................................................... 56
xi

State v. Jones,
296 N.C. 495, 251 S.E.2d 425 (1979) ............................................................................... 44

State v. Keel,
337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, 131 L.Ed.2d 147
(1995) ................................................................................................................................ 85

State v. Lee,
335 N.C. 244, 439 S.E.2d 547, cert. denied, 130 L.Ed.2d 162 (1994) ............................. 78

State v. Lowe,
295 N.C. 596, 247 S.E.2d 878 (1978) ............................................................................... 69

State v. McCarver,
341 N.C. 364, 462 S.E.2d 25 (1995), cert. denied, 517 U.S. 1110, 134
L.Ed.2d 482 (1996). .......................................................................................................... 49

State v. McCoy,
303 N.C. 1, 277 S.E.2d 515 (1981) ................................................................................... 39

State v. Moss,
332 N.C. 65, 418 S.E. 2d 213 (1992) ................................................................................ 12

State v. Neville,
108 N.C. App. 330, 423 S.E.2d 496 (1992) ...................................................................... 72

State v. Nobles,
350 N.C. 483, 515 S.E.2d 885 (1999) ................................................................. 13, 29, 77

State v. Odom,
307 N.C. 655, 300 S.E.2d 375 (1983) ........................................................................ passim

State v. Oliver,
302 N.C. 28, 274 S.E.2d 183 (1981). ................................................................................ 54

State v. Paige,
316 N.C. 630, 343 S.E.2d 848 (1986)............................................................................... 26

State v. Payne,
328 N.C. 377, 388, 402 S.E.2d 582, 588 (1991) ............................................................... 13

State v. Payne,
337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 131 L.Ed.2d 292 (1995) ................... 79

State v. Pinch,
306 N.C. 1, 292 S.E.2d 203, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622
(1982), overruled on other grounds by State v. Benson,
323 N.C. 318, 372 S.E.2d 517 (1988) and by State v. Robinson, 336 N.C.
78, 443 S.E.2d 306 (1994) ................................................................................................ 84
xii

State v. Price,
326 N.C. 56, 388 S.E.2d 84, vacated on other grounds, 498 U.S. 802, 112
L.Ed.2d 7 (1990) ............................................................................................................... 46

State v. Price,
331 N.C. 620, 418 S.E.2d 169 (1992), vacated on other grounds, 506 U.S.
1043, 122 L.Ed.2d 113 (1993) .......................................................................................... 44

State v. Quesinberry,
319 N.C. 228, 354 S.E.2d 446 (1987) ................................................................... 53, 57, 83

State v. Robbins,
319 N.C. 465, 356 S.E.2d 279, cert. denied, 484 U.S. 918, 98 L.Ed.2d 226
(1987) ................................................................................................................................ 65

State v. Robinson,
327 N.C. 346, 395 S.E.2d 402 (1990) ............................................................................... 75

State v. Rose,
339 N.C. 172, 451 S.E.2d 211 (1994) ............................................................................... 34

State v. Rowsey,
343 N.C. 603, 472 S.E.2d 903 (1996). .............................................................................. 81

State v. Sanders,
312 N.C. 318, 321 S.E.2d 836 (1984) ............................................................................... 24

State v. Shuford,
337 N.C. 641, 447 S.E.2d 742 (1990) ............................................................................... 39

State v. Smith, ___ N.C. ___, ___ S.E.
2d ___, 2000 LEXIS 617 (No. 279A99, 25 August 2000) ............................................... 25

State v. Smith,
326 N.C. 792, 392 S.E. 2d 362 (1990) .............................................................................. 12

State v. Squire,
292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 54 L.ed.2d 493
(1977). ............................................................................................................................... 71

State v. Sturdivant,
304 N.C. 293, 283 S.E.2d 719 (1981) ............................................................................... 69

State v. Thomas,
350 N.C. 315, 514 S.E.2d 486 (1999) ............................................................................... 81

State v. Wallace,
351 N.C. 481, 528 S.E.2d 326 (2000) ............................................................................... 69
xiii

State v. Warren,
348 N.C. 80, 499 S.E.2d 431, cert. denied, 525 N.C. 915, 142 L.Ed.2d 216
(1998) ................................................................................................................................ 43

State v. Whiteside,
325 N.C. 911, 383 S.E.2d 911 (1989) ............................................................................... 71

State v. Williams,
304 N.C. 394, 284 S.E.2d 437 (1981), cert. denied, 456 U.S. 932, 72
L.Ed.2d 450 (1982) ........................................................................................................... 64

State v. Williams,
317 N.C. 474, 346 S.E.2d 405 (1986) ............................................................................... 64

Thompson v. Keohane,
516 U.S. 99, 133 L.Ed.2d 383 (1995). .............................................................................. 30

United States v. Gagnon,
470 U.S. 522, 526, 84 L.Ed.2d 486, 490 (1985) (per curiam).......................................... 12

Witherspoon v. Illinois,
391 U.S. 510, 20 L.Ed.2d 776 (1968) ............................................................................... 75

STATUTES

N.C. Gen. Stat. § 7A-454 .............................................................................................................. 34

N.C Gen. Stat. § 9-3 ...................................................................................................................... 13

N.C. Gen. Stat. § 9-5 ..................................................................................................................... 25

N.C. Gen. Stat. § 9-6 ..................................................................................................................... 29

N.C. Gen. Stat. § 9-10(a). ............................................................................................................. 29

N.C. Gen. Stat. § 9-14 ................................................................................................................... 77

N.C Gen. Stat. §14-17 ................................................................................................................... 69

N.C Gen. Stat. § 15-144 ................................................................................................................ 69

N.C Gen. Stat. § 15A-924 ............................................................................................................. 70

N.C Gen. Stat.. § 15A-924(a)(5) ................................................................................................... 72

N.C. Gen. Stat. § 15A-1212(a) ..................................................................................................... 75

N.C. Gen. Stat. § 15A-1214(a) ..................................................................................................... 25

N.C. Gen. Stat. § 15A-1241 (a) .............................................................................................. 12, 24
xiv

N.C. Gen. Stat. § 15A-1443(a) .................................................................................................... 29

N.C. Gen. Stat. § 15A-1444(a) ..................................................................................................... 24

N.C. Gen. Stat. § 15A-1446(b) ..................................................................................................... 29

N.C. Gen. Stat. § 15A-2000 .......................................................................................................... 84

N.C. Gen. Stat. § 15A-2000(b) ......................................................................................... 23, 49, 75

N.C Gen. Stat. § 15A-2000(d)(2).................................................................................................. 64

N.C. Gen. Stat. § 15A-2000(e) ..................................................................................................... 76

N.C. Gen. Stat. § 15A-2000(e)(5) ................................................................................................. 55

N.C. Gen. Stat. § 15A-2000(e)(6) ................................................................................................. 55

N.C. Gen. Stat. § 15A-2000(e)(11) ............................................................................................... 59

N.C. Gen. Stat. §§ 15A-2000(e)-(f) ............................................................................................. 44

N.C. Gen. Stat. § 15A-2000(f) ...................................................................................................... 76

N.C Gen. Stat. § 15A-2000(f)(2) .................................................................................................. 23

N.C Gen. Stat. § 15A-2000(f)(6) .................................................................................................. 23

N.C. Gen. Stat. § 15A-2000(f)(9) ........................................................................................... 45, 76

N.J. Stat. Ann. § 2C:44-3(e) ......................................................................................................... 60

N.C. R. Evid. Rule 401 ................................................................................................................. 45

OTHER AUTHORITIES

N.C. Patt. Jur. Inst. (Crim.) 104.60 ............................................................................................... 38

N.C. Patt. Jur. Inst. (Crim.) 104.70 ............................................................................................... 38

N.C. Patt. Jur. Inst. (Crim.) 214.10 ............................................................................................... 55

CONSTITUTIONAL PROVISIONS

N.C. Const. art. I §§ 18, 19, 23, 24, 27 .................................................................................. passim

U.S. Const. Amends. V, VI, VIII, XIV .................................................................................. passim
No. 510A99 SIXTEEN-B DISTRICT

SUPREME COURT OF NORTH CAROLINA

****************************************************

STATE OF NORTH CAROLINA )
)
v. ) From Robeson
)
DANIEL CUMMINGS, JR. )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

****************************************************
QUESTIONS PRESENTED

I. DID THE TRIAL COURT VIOLATE DEFENDANT'S
STATUTORY AND CONSTITUTIONAL RIGHTS BY EXCUSING
SIX PROSPECTIVE JURORS AFTER UNRECORDED, EX PARTE
DISCUSSIONS?

II. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY FAILING
TO CALL JURORS RANDOMLY FOR VOIR DIRE AND BY
PROCEEDING IN THE ABSENCE OF FOUR POTENTIAL
JURORS?

III. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY DENYING
HIS MOTION FOR EXPERT SERVICES AND HIS MOTION TO
SUPPRESS INVOLUNTARY STATEMENTS?

IV. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY
INSTRUCTING THE JURY THAT THE DEFENDANT HAD
ADMITTED FACTS RELATED TO THE CHARGE OF FIRST
DEGREE MURDER, AND IN FAILING TO INTERVENE TO
PREVENT IMPROPER ARGUMENT?
2

V. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY
ADMITTING EVIDENCE THAT DEFENDANT HAD
PREVIOUSLY BEEN SENTENCED TO DEATH IN A SEPARATE
CAPITAL CASE?

VI. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY
SUBMITTING THE AGGRAVATING FACTOR SPECIFIED
UNDER N.C.G.S. § 15A-2000(E)(6) TO THE SENTENCING JURY?

VII. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY FAILING
TO SUBMIT REQUESTED INSTRUCTIONS ON MITIGATING
CIRCUMSTANCES?

VIII. DID THE TRIAL COURT VIOLATE DEFENDANT'S
STATUTORY AND CONSTITUTIONAL RIGHTS BY DENYING
HIS MOTION TO DISMISS FOR INSUFFICIENCY OF
INDICTMENT AND HIS MOTION TO STRIKE THE DEATH
PENALTY?

IX. WERE DEFENDANT’S STATUTORY AND CONSTITUTIONAL
RIGHTS VIOLATED BY ADMISSION INTO EVIDENCE OF
ILLEGALLY-OBTAINED STATEMENTS?

A. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY
DENYING HIS MOTION TO SUPPRESS FRUITS OF
ILLEGAL DETENTION?

B. DID THE TRIAL COURT VIOLATE DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY
DENYING HIS MOTIONS TO SUPPRESS INVOLUNTARY
STATEMENTS AND STATEMENTS MADE DURING DELAYS
IN PRESENTING DEFENDANT TO MAGISTRATE AND IN
PROVIDING FOR COMMUNICATION WITH COUNSEL?

X. DID THE TRIAL COURT VIOLATE DEFENDANT'S
STATUTORY AND CONSTITUTIONAL RIGHTS BY EXCUSING
FOURTEEN PROSPECTIVE JURORS FOR CAUSE ON THE
GROUNDS THAT THEY WOULD BE UNABLE TO RETURN A
SENTENCE OF DEATH?
3

XII. DID THE TRIAL COURT COMMIT REVERSIBLE
CONSTITUTIONAL ERROR BY PLACING THE BURDEN OF
PROOF ON DEFENDANT TO SATISFY THE JURY WITH
RESPECT TO MITIGATING CIRCUMSTANCES AND FAILING
TO INSTRUCT JURORS THAT PROOF BY THE
PREPONDERANCE OF THE EVIDENCE IS PROOF WHICH
INDICATES THAT IT IS MORE LIKELY THAN NOT THAT A
MITIGATING CIRCUMSTANCE EXISTS?

XIII. DID THE TRIAL COURT COMMIT REVERSIBLE
CONSTITUTIONAL ERROR BY ERRONEOUSLY INSTRUCTING
JURORS THEY COULD FIND THAT A MITIGATING
CIRCUMSTANCE EXISTS AND SIMULTANEOUSLY FIND THE
MITIGATING CIRCUMSTANCE HAS NO MITIGATING VALUE?

XIV. DID THE TRIAL COURT COMMIT PLAIN ERROR BY
ERRONEOUSLY INSTRUCTING THE JURY THAT UNANIMITY
IS REQUIRED TO ANSWER “NO” TO ISSUES I, III, & IV ON
THE ISSUES AND RECOMMENDATIONS SENTENCING FORM?

XV. DID THE TRIAL COURT COMMIT PLAIN ERROR BY FAILING
TO INSTRUCT THE JURY THAT UNANIMITY IS REQUIRED
TO ANSWER “YES” TO ISSUE IV ON THE ISSUES AND
RECOMMENDATIONS SENTENCING FORM?

XVI. DID THE TRIAL COURT COMMIT REVERSIBLE
CONSTITUTIONAL ERROR BY INSTRUCTING THE JURY ON
THE (E)(9) AGGRAVATING FACTOR?

XVII. DID THE TRIAL COURT COMMIT REVERSIBLE
CONSTITUTIONAL ERROR BY INSTRUCTING THE JURY ON
THE (E)(9) AGGRAVATING FACTOR?
4

XVIII. DID THE TRIAL COURT COMMIT REVERSIBLE
CONSTITUTIONAL ERROR BY SENTENCING DEFENDANT TO
DEATH BECAUSE THE DEATH PENALTY IS INHERENTLY
CRUEL AND UNUSUAL; THE NORTH CAROLINA CAPITAL
SENTENCING SCHEME IS UNCONSTITUTIONALLY VAGUE
AND OVERBROAD; AND THE DEATH SENTENCE IN THIS
CASE WAS NOT SUPPORTED BY THE EVIDENCE, WAS
DISPROPORTIONATE, AND WAS IMPOSED UNDER THE
INFLUENCE OF PASSION, PREJUDICE, AND OTHER
ARBITRARY FACTORS?

STATEMENT OF THE CASE

Defendant was arrested on April 26, 1994 and indicted three and a half months later on

charges of first degree murder, first degree burglary, and felonious larceny. Rpp. 2-14. The case

was tried capitally on theories of premeditation and deliberation and felony murder at the March

1, 1999 Criminal Session of Robeson County Superior Court before Superior Court Judge James

R. Vosburgh. A jury found defendant guilty of felony murder and the two lesser felonies. Rpp.

163-66. After hearing evidence in the penalty phase, the jury found three aggravating

circumstances: that the murder was committed for pecuniary gain, that it was especially heinous,

atrocious, and cruel, and that it was part of a course of conduct including crimes of violence

against other persons. The jury found as a mitigating factor that the murder was committed while

defendant was under the influence of a mental or emotional disturbance, and recommended

death. Rpp. 212-217.

Judge Vosburgh entered Judgment and Commitment on March 24, 1999, sentencing

defendant to death for the murder conviction. The trial court arrested judgment on the burglary

conviction because it was the underlying felony of the first degree murder conviction. The trial

court sentenced defendant to 10 years for the larceny conviction. Rpp. 218-225. Defendant

appealed. Rp. 228.
5

STATEMENT OF THE FACTS

The state’s evidence tended to show that on the morning of April 20, 1994, Lena Hales

was found unconscious in her home in Red Springs, North Carolina. Ms. Hales was sitting up in

a recliner dressed in pajamas and a housecoat. There were multiple bruises on her face, head and

neck. She also had cuts on both elbows and her left ankle. One plate of her dentures was

protruding from her mouth. Subsequent examination revealed additional bruises on her hands,

arms, back and shoulder, as well as fractures in several ribs, the hyoid bone and the sternum.

Ms. Hales died in the hospital following her family’s decision to remove her life support system.

York Vol. III Tpp. 47-48, 52, 224-26, 228-29.

The pathologist testified that several of Ms. Hales’ fractures could have resulted from

CPR attempts. She also testified that the injuries could have been caused either by “falling

against a hard object” or by blows. The cause of death was ruled to be a clot in the left side of

the brain resulting from blunt trauma to the head. York Vol. III Tpp. 228-29, 232, 248.

The doors to Ms. Hales’ home were all locked with deadbolts that turned with an interior

key. All of the windows were also locked, except the bedroom window. York Vol. III Tpp. 85,

110, 128, 185-86. The house was “in immaculate condition” with the exception of two broken

windows. Id. Tp. 187. A pane of stained glass had been broken out near the front door, and there

was also a hole in the bedroom window. The state’s witnesses could not establish the size of this

hole. Ms. Hales’ daughter and grandson, who did not have a key to the house, had to break out

the remaining glass with a mop handle in order to open the window and enter through it into Ms.

Hales’ bedroom. Id. Tpp. 46-47, 54, 85, 112, 128.

Broken glass and what appeared to be a bloodstain were found on the bed beneath this

window. Ms. Hales’ purse and wallet also lay on the bed. Id. Tp. 188. Additional stains that

appeared to be blood were found on the recliner, a light switch, and the floor in the hallway. No
6

scrapings from these stains were collected or tested. Id. Tpp. 90-93, 191-193, 209-210. Eight

latent fingerprints were lifted from the scene. No fingerprints were taken from any individual for

comparison. Id. Tpp. 191, 193. No hair or fiber evidence was collected or tested. Id. Tp. 210-

211. No weapon or forensic evidence connected the defendant with the scene.

Frankie Hughes testified for the state that late on the evening of April 18 th, a man

knocked at her door of her home in Red Springs, about one mile away from Ms. Hales’ home.

Ms. Hughes opened the door but did not turn on the porch light. The man asked directions,

“started looking weird,” and, after Ms. Hughes slammed the door and locked it, started beating

on the door. Ms. Hughes described the man as “an Indian” wearing jeans, a T-shirt, and a

baseball cap. Ms. Hughes called her son over from next door. He came out of his house and

watched the man walking down the street away from Ms. Hughes’ home. York Vol. III Tpp. 28-

31. During the investigation of Ms. Hales’ death, Detective Edward (“Ben”) Smith of the Red

Springs Police Department showed Ms. Hughes one photograph, which Ms. Hughes described as

“familiar.” Id. Tp. 32. Over objection, Detective Smith testified that Ms. Hughes said the photo

“looked like the man” who appeared at her door that night. Id. Tp. 269. No photograph was

ever introduced into evidence.

James Teague testified for the state that he had fixed the defendant’s car in the past. He

stated that between 2:00 and 2:30 a.m. on April 19th, the defendant knocked at his door and

asked for $20, saying that “he needed it bad.” Mr. Teague refused to give the defendant any

money, and watched him walk away. York Vol. III Tpp. 35, 37-38.

The state’s case rested on incriminating statements allegedly made by the defendant to

Detective Smith between April 23-26, 1994. On December 31, 1996, the defendant filed a

Motion to Suppress Involuntary Statements. Rp. 92. In this motion, he contended that any

waivers of his rights, and the three statements attributed to him by Detective Smith, were all
7

taken in violation of the state and federal constitutions on the basis that he [the defendant] “is a

person of an intellect significantly below average, he was under the influence of drugs at the time

[of] some or all of the statements were given, and was of impaired judgment and impulse

control.” Id. In his supporting affidavit, the defendant also stated that when he spoke with

Detective Smith he was unable to see because he did not have his glasses. Rp. 94. In addition,

he stated that, while in custody, he had requested a lawyer each day for six days before finally

receiving counsel. Id.

On March 1, 1999, the defendant’s new set of trial lawyers filed an additional Motion for

Expert Services, contending that through testimony of an optometrist, the defendant would be

able to show that without his glasses he had been unable to read any of the written materials

presented to him by Detective Smith. Such a showing would have bolstered his claim of

involuntariness. Rp. 132. The trial court denied this motion on the basis that “the defendant

apparently raises the issue of defective vision or eyesight for the first time on March 1st, 1999”,

and “the issue raised in the motion is the most recent, with it being raised in the last pretrial

motion filed at the beginning of the hearing on all pretrial motions prior to the calling of the case

for trial.” Palmer Vol. II Tpp. 205-206. The court therefore concluded that the motion for expert

services “appears to the court to be one of convenience or delay rather than one of substance,”

and denied the motion. Id.

During the pretrial hearing on these motions, the defendant testified that Detective Smith

had interrogated him regarding Ms. Hales’ death on three separate occasions between April 23-

26, 1994.1 Throughout this time, the defendant was in custody in Sampson County following his

1
Between April 23-28, the defendant was interrogated by officers from
Sampson, Robeson and Brunswick Counties as well as by agents from the State
Bureau of Investigation. During the course of these interrogations, he was
transported from Sampson to New Hanover to Robeson Counties, back to Sampson
County, and finally to New Brunswick County. Rp. 99; State v. Cummings, 346
8

arrest for possessing a stolen van. Palmer Vol. I Tp. 45. During the interrogation on the night of

April 23, the defendant stated that he was “surrounded by police officers” in a very small room

in the nurse’s station; he told Detective Smith that he could not read without his glasses; and that

he felt like he “didn’t have no other choice” but to sign and initial a waiver of each of the rights

protected under Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966). Palmer Vol. I Tpp.

47-48; State’s Exh. 40. On cross-examination, the defendant testified that he believed that in

1994 one of his eyes was “like 70 and the other is like 80.” Palmer Vol. I Tp. 67. He was

required to wear his glasses in order to drive. Id. Tp. 64.

The defendant did not implicate himself in Ms. Hales’ death during this first

interrogation. Palmer Vol. I Tpp. 113-116. After Detective Smith described Ms. Hales and the

circumstances of her death to the defendant, the defendant stated “something about a man meant

to kill the lady because all you would have to do was push her down.” Palmer Vol. I Tp. 115.

On April 25, Detective Smith returned. The defendant testified that at this point “I felt like I

needed a lawyer, and he [Detective Smith] said no. He said, Danny, you won’t need no – you’re

not under arrest. I’m not going to arrest you for anything.” Palmer Vol. I Tp. 50. The defendant

testified that he signed another piece of paper after Detective Smith told him that the paper “was

to show his boss or his supervisor that he … had come up there and talked to me.” Id. Tp. 51.

The defendant testified that he was unable to read the paper that Detective Smith had him sign

because he still did not have his glasses. Id. Once again, the defendant did not implicate

himself in Ms. Hales’ death during this interrogation. Palmer Vol. I Tpp. 122-23.

On April 26, Detective Smith returned. The defendant testified that he again invoked his

right to an attorney but did not receive one. He stated that Detective Smith took him to Red

N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1057, 139 L.Ed.2d 654
(1998).
9

Springs to the Hales home. The defendant told Detective Smith that he had never been to or

broken into Ms. Hales’ house. Detective Smith had the defendant sign another document, again

purportedly to show his boss that he had interviewed the defendant. The defendant again told the

detective that he was unable to read this paper without his glasses. This document turned out to

be another waiver of rights form. Id. Tpp. 52-53, 170-72; State’s Exh. 42. Next, Detective

Smith asked the defendant if he could sign his name, and the defendant complied by signing six

blank sheets of paper. Id. Tpp. 57, 173.

In testifying for the state, Detective Smith agreed that the defendant did not have his

glasses, and was “right wild-looking” during the interrogations. Id. Tp. 139. Detective Smith

also conceded that he had written a traffic ticket for the defendant in the past “for failing to wear

his glasses.” Id. Tp. 143. Detective Smith testified that the defendant never invoked his right to

an attorney, never stated that he was unable to see without his glasses, and never gave any other

indication that his statements were involuntary. Palmer Vol. I Tpp. 108-109, 112, 121-22, 127,

129-30.

Detective Smith read into the record a six-page statement purportedly made by the

defendant on April 26. The statement describes the defendant breaking into Ms. Hales’ home,

thinking that no one was at home, seeking money to buy drugs. The statement says that the

defendant surprised Ms. Hales, asked for her money, grabbed her arm, obtained about $50 from

her, told her to lie down on her bed, and left through an open door. Id. Tpp. 133-34; State’s Exh.

42.

After denying the defendant’s motion for expert services, the trial court also denied his

Motion to Suppress. The court found that all of the statements attributed to the defendant were

“freely, voluntarily and understandingly made.” Palmer Vol. II Tp. 207-208. The court further

found that the defendant was never induced to make any statements through threats or promises.
10

The trial court made no specific findings of fact relating to the defendant’s contentions that the

statements were involuntary due to his frequent requests for counsel, his inability to see the

documents presented to him, or to his impairments from below-average intelligence, use of

drugs, or impaired judgment and impulse control.

At trial, over objection, Detective Smith was allowed to testify in substantially the same

manner as at the suppression hearing. York Vol. III Tpp. 300-305. Detective Smith also

testified that during each of the three interrogations he “verbally” informed the defendant of each

of his Miranda rights, but that during the second and third interrogations the defendant did not

initial the waiver of each right as he had during the first interrogation. State’s Exhs. 41-42; York

Vol. III Tpp. 332, 340.

The defendant presented no evidence. Following the jury verdicts and before the

sentencing phase began, the defendant notified the court that his trial attorneys had failed to

follow his wishes in eliciting evidence during the suppression hearing. York Vol. V Tp. 5.

Specifically, he stated, his lawyers did not abide by his request to present evidence of the many

occasions upon which he was transported between different counties, “to try to establish for [the

court] what kind of condition I was in at the time I was being questioned, you know, lack of

sleep and lack of food[.]” Id. The defendant referred the trial court to the facts documented at

Rp. 99, a time line attached as an appendix to a Motion to Suppress filed by his original set of

trial lawyers. Id.

The trial court conceded that the evidence had not been presented completely. York Vol.

V Tp. 7. The court stated, however, that he had taken judicial notice of the time line during the

suppression hearing and also relied on this Court’s opinion in State v. Cummings, 346 N.C. 291,

488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1057, 139 L.Ed.2d 654 (1998). Id. Tp. 8. The

trial court also stated, “Of course I was bound by the evidence as it was presented to me. Based
11

upon the evidence that I had before me … I made my ruling.” The court conceded that the ruling

could have been in error, but concluded that while it was too late in the proceedings to reopen the

issue of voluntariness, it would “be there for the appellate courts to take a look at”. Id.

At sentencing, over objection, the state presented evidence that the defendant had been

convicted and sentenced to death for the shooting death of Burns Babson in Ash, North Carolina

on April 22, 1994. The state also presented evidence of his additional convictions and sentences

for assault and robbery in charges related to that incident. York Vol. IV Tpp. 35-42; State’s

Sentencing Exhs. 44-49; Cummings, 346 N.C. 291, 488 S.E.2d 550.

The defendant presented evidence in mitigation that he functions in the 15th percentile in

terms of intelligence, which is in the low-intelligence to borderline mental retardation range.

York Vol. V Tp. 171. He reads at the third grade level. Id. Tp. 172. He served three years in

the United States Army, obtained his G.E.D., an Honorable Discharge, and a decoration

commendation. Id. Tpp. 159, 168. He was married for over a decade, had children, and was

employed as a drywall installer when, at the age of 37, he experienced a “real quick downward

course” due to crack cocaine. Id. Tpp. 167-68. The defendant twice sought treatment for drug

abuse. Id. Tp. 160. In mid-April 1994 he fell into a crack-cocaine binge that an investigating

detective described as “drugs, drugs, drugs, drugs, drugs, drugs,” id. Tp. 166, and which

impaired his capacity to appreciate the criminality of his conduct and to conform his conduct to

the law. Id. Tp. 186.

Additional facts are provided as they are relevant to the argument below.
12

ARGUMENT

I. THE TRIAL COURT VIOLATED DEFENDANT'S STATUTORY AND
CONSTITUTIONAL RIGHTS BY EXCUSING SIX PROSPECTIVE
JURORS AFTER UNRECORDED, EX PARTE DISCUSSIONS.

Assignments of Error Nos. 30 & 37; Rpp. 239-240 & 241.

Defendant must receive a new trial because the trial court dismissed six prospective

jurors after unrecorded, ex parte contacts with these jurors (McLain, Kenny Locklear, Wayne

Locklear, Pierce, Sweatt, and Gonzalez). The trial court’s actions violated defendant’s

unwaivable constitutional right to be present at all stages of his capital murder trial and his right

to a complete record for appeal. U.S. Const. amends. V, VI, XIV; Hopt v. Utah, 110 U.S. 574,

28 L.Ed. 262 (1884); N.C. Const. Art. I, § 23; State v. Boyd, 332 N.C. 101, 105, 418 S.E. 2d 471,

473 (1992); N.C. Gen. Stat. § 15 A-1241 (a) (1997).

The right to meaningful participation in capital proceedings is guaranteed by the due

process and confrontation clauses of the state and federal constitutions. United States v. Gagnon,

470 U.S. 522, 526, 84 L.Ed.2d 486, 490 (1985) (per curiam); State v. Exum, 343 N.C. 291, 470

S.E.2d 333 (1996). The record in this case is incomplete or absent with respect to (1) the content

of the court’s communications with these six prospective jurors and (2) the court’s basis for

excusing them from the venire. Consequently, the state cannot prove the errors harmless beyond

a reasonable doubt and the defendant must receive a new trial on all charges. Chapman v.

California, 386 U.S. 18, 17 L.Ed.2d 705 (1967) (establishing harmless-error review for federal

constitutional violations); State v. Moss, 332 N.C. 65, 76, 418 S.E. 2d 213, 224 (1992) (awarding

new trial on all charges); State v. Smith, 326 N.C. 792, 392 S.E. 2d 362 (1990) (same).

More than four years before trial, Defendant filed a motion to secure complete

recordation of the capital proceedings against him. Rp. 34. He filed a second, pro se motion
13

months later, again specifically requesting both complete recordation and “that all bench and/or

chamber conferences be held in his presence.” Rpp. 118-19. The trial court granted these

motions. Rpp. 123, 127; Palmer Vol. I Tp. 93.

On March 2, 1999, this case was called for trial and jury voir dire began. Palmer Vol. II

Tpp. 235, 261. During the next several days, the first three panels (panels A-C) were exhausted.

Palmer Vol. II Tp. 213; Sigmon Vol. III Tp. 689. On March 8, 1999, jury voir dire continued

with Panel D. York Vol. I Tp. 3. After the first juror from panel D was seated as juror number

8, the court ordered a morning recess. Following the recess, the trial court screened panels E-H

with questions “obviously designed to insure that the new prospective jurors were qualified to

serve under N.C.G.S. § 9-3.” State v. Payne, 328 N.C. 377, 388, 402 S.E.2d 582, 588 (1991).

The court began with the three qualifications of citizenship, residency, and age. York Vol. I Tpp.

47-48; compare G.S. § 9-3 (App. 1). No jurors in panels E-H responded to the court’s queries

regarding these first three criteria for jury service. York Vol. I Tpp. 47-48.

The trial court then made a fourth inquiry: whether any member of the pool had served on

a different jury within the last two years. Unidentified members of the pool responded. Next,

the court recited additional statutory qualifications involving loss of citizenship rights through

felony conviction or declaration of mental incompetence. The record does not indicate that any

potential jurors responded to this inquiry. York Vol. I Tp. 48; App. 2.2

At this point, the trial court asked, “Is there anyone who has been through any of those

proceedings who would like to speak to me quietly or privately about it up at the bench?” Again,

2
To comply with N.C. R. App. Proc. 10 & 28 under State v. Nobles, 350
N.C. 483, 515 S.E.2d 885 (1999), transcript cited in this brief but not
fully reproduced in the text is appended, with citations at the close of each
relevant paragraph (“App. ___”).
14

unidentified members of the jury pool responded. Id. The trial court then dismissed prospective

jurors McLain and Locklear after the following unrecorded, ex parte exchanges:

THE COURT: Yes, sir. I’ll see you right up here. All right. You
may come up to the bench. Yes, sir.

(Discussion off the record.)

THE COURT: Yes, Sir. State your name for the Court Reporter,
please.

MR. MCLAIN: Charles McLain (phon).

(Discussion off the record.)

THE COURT: Mr. Jacobson and Mr. Britt, there may be some
serious question with regard to Mr. McLain’s qualifications with
regard to number four, plus the fact that he has to have daily
injections and monthly, and your [sic] scheduled for today?

MR. MCLAIN: No.

(Discussion off the record.)

THE COURT: And there may be some serious question as to
whether or not he qualifies under the fourth qualification because
of the competent aspect of it. If ya’ll don’t have any objection, the
court would excuse him. Do you have any serious objection to
him?

MR. JACOBSON: No, your honor.

THE COURT: Mr. Britt?

MR. BRITT: No, sir.

THE COURT: All right. You may be excused. Madam Clerk will
check so that if this comes up again at least we will know. You
will be deferred to some other time so that the Clerk’s Office can
make an inquiry as to whether or not you actually qualify. So at
this time you may leave, but you may be getting another notice for
further jury service at some other time.

MR. MCLAIN: Do I have to?

THE COURT: Beg your –
15

MR. MCLAIN3: I was wondering do I need to tell you –

(Discussion off the record.)

THE COURT: You are excused from jury duty for this term of
court. You may receive another one, but at least for this one you
will not have to sit until we can determine whether or not you’re
actually qualified. Thank you very much, sir.

All right. All of you have seen the video?

THE CLERK: Judge, there’s another one.

THE COURT: Excuse me. I’m sorry.

MR. LOCKLEAR: Kenny Locklear.

THE COURT: Yes, Mr. Locklear.

(Discussion off the record.)

THE COURT: Thank you, Mr. Locklear. You’re excused to go.

York Vol. I Tpp. 48-50 (emphases added).

Later, when the clerk called Mr. Locklear’s name for Panel F, the trial court and the

district attorney confirmed that he had been excused:

THE COURT: He was one that – wasn’t it Kelly [sic] Locklear one
of the first ones that came up?

MR. BRITT: Yes, he was excused.

THE COURT: Yes, he was.

York Vol. I Tp. 66.

After excusing Mr. Locklear, Judge Vosburgh reiterated that the purpose of his inquiry

was to screen for the various bases of disqualification specified by law:

3
Court reporter Lugene York certifies that the original notation
“Mansfield” was in error, and should read “McLain.” Defendant’s Motion to
Amend Record on Appeal p. 3.
16

THE COURT: Now, I’m going to take some -- if you’re worried
about your qualifications as to whether or not you’re mentally
competent or whether or not your citizenship has been restored, I
will defer some people, but I’m only talking to people right now
who have some serious question as to whether or not they’re
qualified to serve on the jury.

York Vol. I Tpp. 50-51 (emphasis added). In response, three additional members of the pool

spoke with the trial court: Deborah Pierce, Avery Norris Sweatt, and a Mr. Gonzalez.

Ms. Pierce also engaged in an off-the-record conversation with the trial court. This

unrecorded discussion occurred after she stated that she had served as an alternate juror the year

before. York Vol. I Tp. 51; App. 3. Mr. Sweatt then sought excusal for prior jury service as

well, claiming that he had served “three weeks shy of two years” earlier. York Vol. I Tp. 53;

App. 4. Unlike Ms. Pierce, Mr. Sweatt was told on the record to wait in the courtroom while the

clerk of court checked his allegation. Because there is no record of the conversation between

Ms. Pierce and Judge Vosburgh, it is impossible to know whether the trial court requested a

similar investigation into Ms. Pierce’s claim or, if not, why the two jurors were treated

differently. The record also does not disclose the results of the clerk’s investigation into Mr.

Sweatt’s claim, nor is there any recorded ruling on these jurors’ requests for excusal. Instead,

their off-the-record dismissal from the venire is proved by their subsequent absence: neither was

assigned to Panels E-H, and neither ever appeared for voir dire.4 York Vol. I Tpp. 61-62, 66,

69-70, 72; App. 5-7 (digest of jury voir dire).

After talking with Ms. Pierce, the trial court then invited Mr. Gonzalez to join him at the

bench for an ex parte discussion:

4
Thus, this case is distinguished from Nobles, 350 N.C. 483, 515
S.E.2d 885. In this case, the record shows that the trial court (1)
communicated directly with these jurors and (2) as a result of those
discussions, caused their dismissal from the venire.
17

THE COURT: This gentleman back here has his hand up. I’ll see
you now if you want to come up here. Are you bringing an
interpreter with you? I’m going to need one, I guess. Come on up.
I will see you. All right. You may step up closer to the bench, if
you will.

(Discussion off the record.)

York Vol. I Tp. 51-52 (emphases added).

Following this ex parte conversation with Mr. Gonzalez, the trial court admitted that he

had difficulty communicating with the juror due to a “language barrier problem,” and deferred

his service to a later term of court. Significantly, in announcing his decision after talking

privately with Mr. Gonzalez, the trial court noted that the defense, instead of being present at the

bench to observe the court’s colloquies with these prospective jurors, had instead remained “over

here at the defense table” throughout the proceedings. York Vol. I Tpp. 52; App. 8.

Finally, during the calling of jurors for Panel E, the following exchange occurred:

THE CLERK: Jane Wynn, seat three. Wayne Locklear.

THE COURT: Was he the first one?

(Discussion off the record)

THE COURT: Okay.

THE CLERK: Carol Scippio, seat four, S-c-i-p-p-i-o. Barbara
Tyson, Barbara Tyson, seat five. …

York Vol. I Tp. 62. As in the cases of Ms. Pierce and Mr. Sweatt, there is no record of Wayne

Locklear’s excusal from jury service, yet he was neither assigned to Panels E-H nor was he

questioned during jury voir dire. App. 5-7.

In the defendant’s case, as in Smith, Moss, and Boyd, the trial court dismissed prospective

jurors after ex parte, off-the-record contacts – three with Mr. McLain, one with Kenny Locklear,
18

one or more with Ms. Pierce, one with Mr. Gonzalez, one or more with Mr. Sweatt, and one or

more with Wayne Locklear. The record establishes that these discussions were held in the

absence of the defendant and his lawyers. At the outset, “the trial court invited the prospective

juror[s] to the bench to discuss the problem[s] privately, even though counsel and the defendant

were in the courtroom.” Smith, 326 N.C. at 793, 392 S.E.2d at 363; York Vol. I Tp. 48, lines 15-

17.

The trial court then reinforced this general assurance that the discussions would be

private by specifically instructing potential jurors to approach the bench one by one: (to Mr.

McLain) “Yes, sir, I’ll see you right up here…You may come up to the bench”; (to Ms. Pierce

and unnamed members of the venire) “I’m only talking to people right now who have some

serious question as to whether or not they’re qualified to serve on the jury”; (to Mr. Gonzalez)

“I’ll see you now if you want to come up here …. Come on up. I will see you. … You may step

up closer to the bench, if you will.” York Vol. I Tpp. 48, 50-51. Where, as here, “the trial

judge uses phrases in the first person,” the record amply establishes the occurrence of ex parte

contacts between the court and the potential jurors. State v. Hartman, 344 N.C. 445, 454-55, 476

S.E.2d 328, 333 (1996), cert. denied, 520 U.S. 1201, 137 L.Ed.2d 708 (1997).

Moreover, the record underscores the exclusion of the defendant and his counsel from all

of these judge-juror conversations. First, by the trial court’s own description, the defendant and

his counsel were not at the bench, but “over here at the defense table” during the conferences.

York Vol. I Tp. 52. Second, the trial court occasionally informed the defense -- albeit

incompletely and ambiguously -- about aspects of these private conversations as they occurred.

Obviously, such information would have been superfluous had the defendant and his counsel

participated in the unrecorded conversations.
19

It is the state’s burden to prove these violations of the defendant’s state and federal

constitutional rights harmless beyond a reasonable doubt. In the cases of Kenny and Wayne

Locklear, the record is completely silent with regard to the bases for their dismissal.

Consequently, this Court “cannot exercise meaningful appellate review,” the State cannot carry

its burden, and the defendant must receive a new trial on all charges. Smith, 326 N.C. at 795,

392 S.E.2d at 364.

The deferrals of Mr. Gonzalez and Mr. McLain require the same result.5 In Mr.

Gonzalez’ case, the record shows that in the trial court’s view, the juror was “very fluent in

Spanish, which I cannot speak. He is not very fluent in English, which I understand very well.”

York Vol. I Tp. 52. The defendant recognizes that this Court has found harmless error on

occasions in which the trial court reconstructs the basis for a juror’s ex parte dismissal on the

record, and the record shows that the defendant’s presence “would have made no difference in

the outcome” because the trial court’s reasoning was “manifestly unobjectionable.” Payne, 328

N.C. at 389, 402 S.E.2d at 589.

Thus, the Payne analysis is appropriately limited to objective matters, such as

documented medical excuses, e.g., Hartmann, 344 N.C. at 454, 476 S.E.2d at 333, or obvious

calendar conflicts, as in State v. Adams, 335 N.C. 401, 408, 439 S.E.2d 760, 763 (1994). Mr.

Gonzalez’ deferral is distinguished from such cases because of the level of subjective evaluation

evident in Judge Vosburgh’s assessment of this juror’s ability to communicate. Where such

subjective evaluation is documented on the record, the state cannot prove that the trial court’s

decision is “manifestly unobjectionable” or that a defendant’s independent observation and

evaluation of the juror “would have made no difference” in the trial court’s decision-making

5
It is irrelevant that these potential jurors were deferred instead of
excused. State v. Cole, 331 N.C. 272, 276, 415 S.E.2d 716, 718 (1992).
20

process, and the constitutional guarantees of due process and the right to confrontation require

that the defendant receive a new trial on all charges. Gagnon, supra; Smith, supra. Under these

circumstances, the error is structural. Gray v. Mississippi, 481 U.S. 648, 95 L.Ed.2d 622 (1987).

With respect to the deferral of Mr. McLain, the record is so incomplete and ambiguous as

to raise serious, reasonable doubt about the content of the trial court’s discussions with this juror

and the rationale for the court’s decision. Thus, the record is as functionally silent in the case of

Mr. McLain as it regarding the dismissals of the two Locklears. Again, on such a record this

Court cannot perform meaningful review, nor can the state disprove the reasonable likelihood

that the defendant’s independent observation of these jurors could have influenced the trial

court’s decision and resulted in their serving on his capital jury. Gagnon, supra; Smith, supra;

Gray, supra.

Uncertainty regarding Mr. McLain is evident, first, in the fact that the trial court’s

private discussions with this juror did not yield enough information to warrant disqualification.

Instead, Mr. McLain was deferred so that the clerk of court could “make an inquiry” regarding

his qualifications. This record shows that there was room for doubt and differing interpretations

of Mr. McLain’s demeanor and the substance of the ex parte discussions. Consequently, the

defendant’s independent observations could have influenced the trial court to retain this juror in

the venire.

In Mr. McLain’s case, the record does indicate that, based on private discussions with the

juror, the trial court perceived a question about his qualification “with regard to number four …

because of the competent aspect of it” and because of Mr. McLain’s need for daily and monthly

injections of an unspecified nature. York Vol. I Tp. 49. The trial court’s references to “number

four” and “the competent aspect” are unhelpful, however. The general context of the court’s
21

inquiry was the statutory definition of juror competence, with a specific focus on possible

disqualification due to a number of factors. These factors included recent jury service, mental

and physical disability, felony conviction, loss of citizenship, and difficulties with language

comprehension. G.S. § 9-3. On this record, the first three factors were citizenship, residence,

and age. “Number four,” or the fourth disqualifying factor, was prior jury service. The fifth and

sixth factors related to loss of citizenship through felony conviction or mental disability. Under

the statute, all six factors relate to competence to serve on a North Carolina jury.

After listing all of the above factors, the trial court invited “anyone who has been through

any of those proceedings to speak to me quietly or privately about it up at the bench.” York Vol.

I Tp. 48 (emphasis added). Unnamed jurors had responded both when the trial court inquired

about prior jury service and when he invited jurors to talk with him privately. Id. The trial

court also reiterated that the context of these ex parte discussions was juror competence in

general: “I’m only talking to people right now who have some serious question as to whether or

not they’re qualified to serve on the jury.” York Vol. I Tp. 51.

Thus, the record shows that Mr. McLain and other unnamed jurors had “some serious

question” about serving on The defendant’s jury, but does not show precisely what his particular

questions were. One reasonable interpretation of the record is that Mr. McLain discussed the

fourth basis for excusal (prior jury service) with the trial court, as did potential jurors Pierce and

Sweatt, who followed him.

In light of concerns about Mr. McLain’s need for injections, however, the trial court’s

references to the “competent aspect” of jury qualification also could indicate that the court

questioned whether the juror might have lacked either the physical or mental capacity to serve as

a juror. Because the court’s comments do not provide the full nature and content of the three
22

private discussions with Mr. McLain, there is no basis for choosing between these various

competing interpretations of the record. To the contrary, in the context of the governing statute,

the record reveals that several aspects of Mr. McLain’s qualifications were discussed privately,

while the ultimate reason for his deferral cannot be determined.

Without a record either of these ex parte discussions or of the clerk’s promised inquiry

into Mr. McLain’s qualifications, this Court “cannot exercise meaningful appellate review” and

the state cannot prove the violations of the defendant’s state and federal constitutional rights

harmless beyond a reasonable doubt. Smith, 326 N.C. at 795, 392 S.E.2d at 364. The trial

court’s uncertainty as to Mr. McLain’s qualifications and the absence of any clear basis for the

trial court’s decision create a reasonable likelihood that the defendant would have affected the

outcome with respect to this juror’s participation had he been granted his due process and

confrontation rights to participate at this crucial stage of his capital trial. Gagnon, supra; Smith,

supra; Gray, supra.

More specifically, on this record the state cannot disprove the possibility that Mr.

McLean experienced a treatment history relating to his physical or mental competence as a juror.

Consequently, the state cannot disprove the reasonable likelihood that such a history would have

given him a deeper understanding and appreciation of the defendant’s mitigating evidence of

psychological disability and diminished capacity during sentencing proceedings. This is a

crucial point because under North Carolina’s capital sentencing law, a single juror’s finding and

weighing of mitigation is literally a life-or-death issue for a capital defendant. N.C.G.S. § 15A-

2000(b) (requiring juror unanimity in capital sentencing recommendations); State v. Hedgepeth,

350 N.C. 776, 788, 517 S.E.2d 605, 613 (1999), cert. denied, ___ U.S. ___, 146 L.Ed.2d 223

(2000) (capital sentencing jurors required to give weight to any statutory mitigating

circumstances found).
23

Moreover, in the defendant’s case, the jury rejected the state’s argument that the victim’s

death was premeditated and deliberate and found the defendant guilty of felony murder only.

The underlying rationale for this verdict became clear during sentencing deliberations. Members

of the jury initially answered “No” to statutory mitigating circumstance (1) (“This murder was

committed while the defendant was under the influence of a mental or emotional disturbance.”).

N.C.G.S. § 15A-2000(f)(2). That answer was scratched out, however, as one or more jurors

changed that answer to “Yes.” Rp. 214. Despite this finding, the record shows that no juror

found the existence of statutory mitigating circumstance (2) (“The capacity of the defendant to

appreciate the criminality of his conduct or to conform his conduct to the requirements of the law

was impaired.”). Id.; N.C.G.S. § 15A-2000(f)(6).

The jury’s movement from a negative to a positive finding on mitigating circumstance

(1), and its inconsistent failure to find the existence of the closely related mitigating

circumstance (2), create a reasonable likelihood that Mr. McLain could have contributed

significantly to the jury’s deliberations on these two points, resulting in a finding in The

defendant’s favor on the latter circumstance and a heavier weighing of both circumstances

during the deliberations over Issues III and IV. Thus, the state cannot prove beyond a

reasonable doubt that a more intimate comprehension of the defendant’s evidence on these

crucial issues in mitigation would not have resulted in a different outcome in these capital

proceedings.

These circumstances strongly implicate The defendant’s unwaivable state and federal

constitutional rights to participate in the capital proceedings against him. These constitutional

concerns are heightened by the risk that Mr. McLean was improperly excluded from the jury,

which is reversible error per se under Gray v. Mississippi, 481 U.S. 648, 95 L.Ed.2d 622.
24

Indeed, the uncertain basis of Mr. McLain’s deferral strongly hints of a Gray violation: to the

extent that the record shows that this juror was receiving treatment for some disability, that very

treatment may have rendered him competent to serve. Similarly, the disappearances of potential

jurors Pierce and Sweatt from the venire without any recorded ruling on their requests for

excusal raise potential Gray issues.

The defendant cannot brief these Gray issues, however, without knowing the substance of

the trial court’s private conversations with these jurors. These facts demonstrate prejudicial

violations of the defendant’s rights to due process, equal protection, and the effective assistance

of appellate counsel, as well as his statutory rights to a complete record on appeal. U.S. Const.

amends. V, XIV; N.C. Const. art. I, § 19; Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821 (1985);

State v. Boyd, 332 N.C. 101, 418 S.E.2d 471 (1992); State v. Sanders, 312 N.C. 318, 321 S.E.2d

836 (1984); see Hardy v. United States, 375 U.S. 277, 11 L.Ed.2d 331 (1964) (appellate counsel

has duty to review complete transcript); N.C. Gen. Stat. §§ 15A-1241(a), 15A-1444(a).

Based on the state and federal authorities cited above, the inadequate record in this case

prevents the state from proving harmless these violations of the defendant’s due process and

confrontation rights to participate in his capital trial, as well as his statutory and constitutional

rights to a complete and accurate record on appeal. The record is completely silent as to the

bases for the dismissals of Kenny and Wayne Locklear, and it is incomplete with respect to the

bases for the dismissals of jurors McLain, Gonzalez, and Pierce. The state cannot prove beyond

a reasonable doubt that the defendant could have had no influence on the trial court’s decisions

to dismiss these jurors. He must receive a new trial on all charges.
25

II. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY
AND CONSTITUTIONAL RIGHTS BY FAILING TO CALL
JURORS RANDOMLY FOR VOIR DIRE AND BY PROCEEDING
IN THE ABSENCE OF FOUR POTENTIAL JURORS.

Assignments of Error Nos. 7 & 8, Rp. 233.

North Carolina adheres to a strict policy of random selection for jury service, both for

placement within the venire and for selection for questioning by the parties. N.C. Gen. Stat. § 9-

5 (selection of venire); N.C. Gen. Stat. § 15A-1214(a) (selection of prospective jurors for voir

dire) (App. 9). This policy protects the defendant’s fundamental due process and Sixth

Amendment rights to a fair and impartial jury. U.S. Const. amends. VI, XIV; Irwin v. Dowd,

366 U.S. 717, 6 L.Ed.2d 751 (1961); N.C. Const. art. I, §§ 19, 23, 24; State v. Carey, 285 N.C.

497, 506, 206 S.E.2d 213, 220 (1974) (basic concept in jury selection is right of each party to

unbiased jury).

Section 1214(a) imposes a mandatory duty upon the trial court to ensure that the clerk

calls potential jurors “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.G.S. § 15A-1214(a); State v.

Smith, ___ N.C. ___, ___ S.E.2d ___, 2000 LEXIS 617 at 27 (No. 279A99, 25 August 2000)

(statute mandates random selection). In defendant’s case, the trial court violated defendant’s

constitutional rights as well as the statutory mandate of random jury selection when, after

dividing the prospective jurors into panels, the clerk was allowed to call each prospective juror

for individual voir dire in precisely the order in which that juror had been assigned to his or her

panel. Palmer Vol. II Tpp. 245-247, 250, 252; York Vol. I Tpp. 61-62, 66; App. 5-7, 10-12

(transcript pages and digest of jury voir dire).

Under these circumstances, “everyone in the courtroom had ‘advance knowledge of the

identity of the next juror to be called,’” in clear violation of section 1214(a). State v. Campbell,

51 N.C. App. 418, 419, 276 S.E.2d 726, 728 (1981). Because the statute is mandatory, the
26

defendant’s right to appeal the violations of his rights is preserved regardless of his attorneys’

failure to object at trial. State v. Golphin, ___ N.C. ___, ___ S.E.2d ___, 2000 LEXIS 618 at 71

(No. 441A98, 25 August 2000).

Moreover, defendant’s case is distinguished from those in which this Court has rejected

challenges to the formation of jury panels, citing N.C. Gen. Stat. § 15A-1211(c). E.g., Golphin,

supra; State v. Braxton, ___ N.C. ___, 531 S.E.2d 428, 2000 LEXIS 524 at 16 (No. 2A98, 13

July 2000). These cases, and section 1211(c), are inapposite to the defendant’s claim. Section

1211(c) provides that either party in a criminal case “may challenge the jury panel” and

mandates procedures for mounting such a challenge. App. 13. Thus, the statute is limited by its

terms to issues arising from the improper formation or composition of the jury panel itself. State

v. Paige, 316 N.C. 630, 640, 343 S.E.2d 848, 855 (1986) (addressing motion to quash jury panel

under § 15A-1211(c) as drawn in violation of statute); Golphin (addressing challenge to

formation of panels); Braxton (same).

In this case, the defendant does not challenge the formation of the panels from the venire

in his capital case. He contends that the trial court violated the statutory mandate requiring

random selection of jurors from the panels for voir dire after the panels were constituted.

Consequently, the defendant’s statutory and constitutional claims are properly before this Court.

The violation of the statutory mandate circumvented the defendant’s substantial

constitutional rights, and this Court can only speculate about the results had the mandate been

obeyed. Consequently, the error is prejudicial per se and the defendant must receive a new trial

on all charges. Gray v. Mississippi, 481 U.S. 648, 95 L.Ed.2d 622 (1987) (erroneous removal of

venire member for cause held structural error); State v. Barrow, 350 N.C. 640, 517 S.E.2d 374

(1999) (denial of right to multiple closing arguments reversible per se); State v. Hucks, 323 N.C.

574, 374 S.E.2d 240 (1988) (same, with respect to denial of capital defendant’s right to second
27

counsel); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985) (same, with respect to jury request

to review evidence during deliberations); State v. Colbert, 311 N.C. 283, 316 S.E.2d 79 (1984)

(same, with respect to denial of counsel during jury selection).

On March 2, 1999, the trial court divided the jury pool into four panels (A-D). Palmer

Vol. II Tpp. 239-254. These jurors completed questionnaires, which were distributed to both

parties. Id. Tpp. 255-56. Before the jurors were randomly divided among the four panels, the

trial court informed them that they would be examined individually during voir dire. Id. Tp. 244.

As the members of each panel were called into the box and assigned their numbered seats, the

trial court instructed the members of the panel to memorize their assigned places in the panel:

Let me ask you to look where you are, where your seat is, who
you’re sitting next to, because when you come back in … these
will be the seats that you will be expected to occupy … remember
your seat number … I’ll ask you to file out in order … look around
and become acquainted, at least by sight, with the person next to
whom you may be sitting. And also, remember the seat that you
now occupy.

Id. Tpp. 246, 248, 250.

The General Assembly has made random voir dire the sine qua non of selecting an

impartial jury. Consequently, the fundamental principle of fairness is violated where, as here,

the random pool is ordered under an organizing principle readily perceptible to all parties -- the

jurors themselves, the clerk, and the officers of the court. The nonrandom jury selection process

in this capital case also provided a unique opportunity for the exercise of informed strategy

regarding the exercise of peremptory strikes, implicating the jurors’ rights to serve on the

defendant’s jury. See Batson v. Kentucky, 476 U.S. 9, 90 L.Ed.2d 69 (1986). Indeed, had the

trial court announced that jurors would be selected from the panels by street address or shoe size,

the selection process in this case would have been more random and fair, because “the identity of

the next juror to be called” would have been a little less obvious to all concerned.
28

Instead, the trial court compounded the error of nonrandom selection by carefully

focusing the attention of the jurors on the identity of the order in which they would be called for

voir dire, and on the specific identity of the jurors immediately preceding and following them.

These facts likely exacerbated the natural flow of information among the jurors, for whom,

common sense tells us, the first subject of conversation was surely their immediate shared

concern with the nature of jury service and possible bases for excusal.

The record supports the reasonable likelihood that the nonrandom selection process

affected the composition of the defendant’s capital jury. For example, the trial court himself

observed an unusually high number of for-cause strikes. Throughout jury voir dire, the trial court

kept a running toll of the numbers of for-cause challenges versus peremptory strikes. E.g., York

Vol. II Tp. 3. The trial court noted that there had been approximately twice as many for-cause

challenges as peremptory challenges on the side of the state or the defendant (20 for-cause

challenges, versus 10 state peremptories and 12 defense peremptories). The court then observed:

“Those challenges for cause, they come a flood at a time. The way they’ve been going. I don’t

understand it.”6 Id. These facts indicate that venire members shared either speculative or

accurate information about the nature and facts of the case and the selection process of a capital

jury. That information likely resulted in the excusal of qualified jurors from the defendant’s

jury.

In addition to violating the statutory mandate requiring random voir dire, the trial court

proceeded with jury voir dire in the absence of four AWOL jurors: Rhonda Odum, Gregory

Westbrook, April Sinclair, and Patricia Jones. York Vol. I Tpp. 61, 69, 70; York Vol. II Tp. 124.

6
The record supports the trial court’s observation. For example, seven
of twelve jurors on Panel C were subject to for-cause challenges. Sigmon
Vol. III Tpp. 523, 609, 617, 621, 624, 627, 634.
29

N.C. Gen. Stat. § 9-6 declares that in North Carolina “jury service is the solemn

obligation of all qualified citizens,” with excuses granted only for “compelling personal

hardship.” To ensure that citizens perform this duty, the legislature empowered local sheriffs

with the ability to serve binding summonses on jurors. Id. § 9-10(a). Disobedience of the

summons is punishable by a fine. Id. § 9-13. Here, too, the trial court’s failure to enforce the

law with respect to these jurors is prejudicial per se because its effect on the makeup of the jury

cannot be measured. See Gray, 481 U.S. 648, 95 L.Ed.2d 622 (refusing to apply harmless error

analysis to erroneous removal of venire member for cause); Colbert, 311 N.C. 283, 316 S.E.2d

79 (denial of counsel during jury selection is reversible per se).

In the alternative, for the reasons given above the defendant contends that the trial court’s

errors with respect to jury selection were prejudicial violations of the governing statutes. N.C.

Gen. Stat. § 15A-1443(a). For the same reasons, the court committed plain constitutional error

in depriving the defendant of his fundamental constitutional right to a fair, randomly-selected

jury. G.S. 15A-1446(b) (reviewing court may reach errors affecting substantial rights despite

trial waiver); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (reciting plain error

standard). Under any standard of review, the trial court’s denial of the defendant’s fundamental

due process rights requires a new trial on all charges. See State v. Nobles, 350 N.C. 495, 514-15,

515 S.E.2d 893, 904 (1999) (ordering new sentencing hearing for due process violation despite

trial waiver).

III. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY
AND CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION
FOR EXPERT SERVICES AND HIS MOTION TO SUPPRESS
INVOLUNTARY STATEMENTS.

Assignment of Error No. 4, Rp. 232.
Assignment of Error No. 6, Rp. 233.
30

In Dickerson v. United States, ___ U.S. ___, 147 L.Ed.2d 405 (2000), the United States

Supreme Court reaffirmed that due to “the coercion inherent in custodial interrogation,” the Fifth

and Fourteenth Amendments demand careful scrutiny of the circumstances in which

incriminating statements are attributed to prisoners subject to modern interrogation methods.

___ U.S. at ___, 147 L.Ed.2d at 414. Therefore, mere compliance with the constitutional

guidelines established in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966) does not

“conclusively establish[] the voluntariness of a subsequent confession.” Berkemer v. McCarty,

468 U.S. 420, 433-34 n..20, 82 L.Ed.2d 317, 330-31 n.20 (1984).

Instead, the reviewing court must determine whether, as a matter of law, the totality of

the circumstances shows the waiver itself to have been voluntarily made. Thompson v. Keohane,

516 U.S. 99, 133 L.Ed.2d 383 (1995). These circumstances include “the background,

experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461

(1938). There is a heavy burden on the state to prove knowing, voluntary, and intelligent waiver

of constitutional rights. Miranda, 384 U.S. at 475, 16 L.Ed.2d at 724. The reviewing court must

“indulge every reasonable presumption against waiver.” Johnson, 304 U.S. at 464, 82 L.Ed.

1461. “Doubts must be resolved in favor of protecting the constitutional claim.” Michigan v.

Jackson, 475 U.S. 625, 633, 89 L.Ed.2d 631 (1986).

As noted in the statement of facts, the defendant was held in custody without the benefit

of an attorney for five days. During that time, he was transported back and forth between

Sampson, New Hanover, Robeson, and Brunswick Counties. He was repeatedly interrogated by

officers from four jurisdictions. See supra note 1. According to his testimony at the suppression

hearing, he repeatedly requested an attorney, and those requests were repeatedly denied. He

also alleged that Detective Smith actively misled him as to the content of the waivers and the one

statement that bore his signature. There was no dispute that the defendant could not see without
31

his glasses. There was also no dispute that he had been on a days-long cocaine binge prior to his

arrest -- a binge that an investigating detective summed up as “drugs, drugs, drugs, drugs,

drugs, drugs.” York Vol.V Tp. 166.

Moreover, evidence presented in mitigation showed that the defendant functions in the

15th percentile in terms of intelligence, which is in the low-intelligence to borderline mental

retardation range, and reads at the third grade level. Id. Tpp. 171-72. He also suffers from a

mixed personality disorder with dependant and avoidant traits, as well as neuropsychological

deficits that cause disorganized thinking and poor problem solving. Id. Tpp. 172, 180-83. The

dependant traits make the defendant “needy and … [he] wants feedback and wants you to like

him and feel good about him.” Id. Tpp. 181-82.

The defendant’s suppression motion alleged that any waivers of his Miranda rights were

involuntary because he “is a person of an intellect significantly below average, he was under the

influence of drugs at the time [of] some or all of the statements were given, and was of impaired

judgment and impulse control.” Rp. 92. In his supporting affidavit, the defendant also stated

that when he spoke with Detective Smith he was unable to see any of the written material that

was given him because he did not have his glasses. Rp. 94. In addition, he stated that he

requested a lawyer each day for six days before finally receiving counsel. Id.

The record also shows that during the investigation of the case, Detective Smith

manipulated the statements attributed to the defendant to create an appearance of conflict and

prevarication where none existed. According to Detective Smith’s testimony during the

suppression hearing, in the first interrogation on April 23 the defendant explained that on the

night of April 19 he spent time with friends Terry Locklear, Cotton Dial, and James Locklear.

He said that he had hitched a ride with the latter two around 2:00 or 2:30 in the morning after

buying cigarettes. Detective Smith testified that Terry Locklear and Cotton Dial corroborated
32

these statements. He also conceded that he never bothered to locate a number of other potential

witnesses who could have provided similar corroboration. Palmer Vol. I Tpp. 114, 117; York

Vol III Tpp. 288-89.

According to Detective Smith, the defendant told him that he “was never at the Pecan

Orchard” on the night in question. The defendant did explain that he stopped at James Teague’s

house and asked to borrow $20. Palmer Vol. I Tp. 114. Once again, the record corroborated the

defendant’s statements. At trial, James Teague testified to exactly the same facts, adding that he

himself lived in the Pecan Orchard. York Vol. III Tp. 36.

Thus, the record shows that the detective’s investigation confirmed the defendant’s

explanation of his own whereabouts in the early morning hours of April 19th. The record also

shows that the defendant readily admitted that he had asked James Teague for money that

morning at his home in the Pecan Orchard. Despite these facts, at both the suppression hearing

and at trial Detective Smith testified that the statements attributed to defendant from this first

interrogation “didn’t check out.” Palmer Vol. I Tp. 120, York Vol. III Tp. 286.

Careful scrutiny of the record does not reveal any meaningful contradiction of the

statements attributed to the defendant from that interrogation. Palmer Vol. I Tpp. 113-118, York

Vol. III Tpp. 278-79, 287-88 (App. 14-23). Nevertheless, based on some unidentified, purported

conflict in the “bunch of stories” attributed to the defendant, Detective Smith initiated the second

interrogation at 7:24 a.m. on April 25. Palmer Vol. I Tpp. 113, 119; York Vol. III Tp. 286. This

record indicates that the nonexistent “conflict” was a ruse used to badger and trick the defendant

into involuntary self-incrimination.

It was only during the highly coercive circumstances of the third interrogation that any

incriminating statements were attributed to the defendant. See infra Issue IV. Evidence at the
33

suppression hearing showed that during this interrogation Detective Smith placed the defendant

next to the Chief of the Red Springs police department in the back seat of his police car and

transported him to Red Springs, stopping for a tour of the Hales home. The defendant testified

that during this tour Detective Smith “showed me the different things that had took place and

told me that I did this and did that and all.” Palmer Vol. I Tpp. 169-70. Significantly, Detective

Smith did not contradict the defendant’s testimony, stating only that “we may have” stopped at

the Hales home, but he could not “recall.” Id. Tp. 149.

Based on the evidence presented at the suppression hearing, the trial court denied the

defendant’s motion for an optometrist to evaluate his vision and to offer evidence to support a

finding of involuntariness. The court based its decision on two findings. First, the court found

that the defendant initialed the first waiver form “in the correct place without assistance,” and

“signed the forms in the proper place.” Palmer Vol. II Tp. 206. Second, the court found that the

question whether the defendant was able to see any of the written material presented to him well

enough to read and understand it was raised as a matter of “convenience or delay rather than one

of substance.” Id. The trial court also denied the defendant’s suppression motion, finding that

the defendant made the statements “freely, voluntarily, and understandingly” and that the

statements were not induced by threats or promises. Palmer Vol. II Tp. 207.

The trial court’s finding of voluntariness is reviewed de novo. Thompson v. Keohane,

516 U.S. 99, 133 L.Ed.2d 383. The totality of the circumstances present in this case strongly

indicates that the techniques employed by Detective Smith were designed to overcome the will

of a borderline retarded, drug-addicted, psychologically dependant indigent who had been

interrogated over the course of five days by officers from a number of local and state police

departments, while his repeated demands for counsel were denied, and while he was shipped

back and forth between several jurisdictions. Under such circumstances, the finding that the
34

defendant’s statements were not obtained through threats or promises – while not clearly

erroneous – is not dispositive. Instead, the totality of the circumstances grounds a “reasonable

presumption against waiver” and demonstrates that the statements attributed to the defendant by

Detective Smith are the product of police coercion and inherently unreliable. Johnson v. Zerbst,

supra.

The powerfully coercive atmosphere surrounding these statements highlights the trial

court’s abuse of discretion in denying the defendant’s motion for expert assistance. An indigent’s

right to expert assistance is guaranteed by state statute and by his state and federal constitutional

rights to due process and equal protection of the law. U.S. Const. amends. V, XIV; Ake v.

Oklahoma, 470 U.S. 68, 84 L.Ed.2d 53 (1985); N.C. Const. art. I, §§ 19, 23; State v. Parks, 331

N.C. 649, 417 S.E.2d 467 (1992); N.C. Gen. Stat. § 7A-454 (1999). In the context of these

interrogations, the defendant certainly made a sufficiently “particularized showing that … there

[was] a reasonable likelihood that [such assistance] would materially assist him in the

preparation of his case” by bolstering his evidence of involuntariness. State v. Rose, 339 N.C.

172, 451 S.E.2d 211 (1994) (internal citation and quotation marks omitted)).

The evidence before the trial court showed a reasonable likelihood that expert assessment

of the defendant’s vision and medical records would have made a material contribution to his

showing that the statements attributed to him by Detective Smith were not provided knowingly

or voluntarily. It was uncontested that the defendant could not see without his glasses. Detective

Smith himself testified that he had ticketed the defendant for driving without his glasses. Thus,

the defendant’s testimony that he was able to make out the blank spaces for his signature without

being able to read any of the printed material was completely consistent with the testimony of the

state’s star witness.
35

Moreover, the record provides no factual or legal support for the trial court’s conclusion

that the Ake motion could be denied because of the date it was filed. There was no evidence that

the trial would have been diverted in any respect by allowing the defendant to undergo an eye

examination while jury selection proceeded. The district attorney raised no objection to the

timing of the motion, and expressed no concerns about any risk of delay or any other significant

prejudice to his case. York Vol. II Tpp. 199-202. Indeed, the defendant had already subpoenaed

the available medical records, and had not requested any continuance or other delay in order to

have them evaluated. Id. Tp. 203.

The defendant’s right to be free from involuntary self-incrimination is a substantial right

under the state and federal constitutions. The statements attributed to the defendant by Detective

Smith provided the sole link between the defendant and the charged offenses. The trial court’s

denial of the defendant’s motion for expert services was an abuse of discretion that contributed

materially to the erroneous denial of his motion to suppress. These errors constituted prejudicial

violations of the defendant’s federal and constitutional rights under the authorities cited above.

He must receive a new trial.

IV. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY
AND CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY
THAT THE DEFENDANT HAD ADMITTED FACTS RELATED
TO THE CHARGE OF FIRST DEGREE MURDER, AND IN
FAILING TO INTERVENE TO PREVENT IMPROPER
ARGUMENT.

Assignment of Error Nos. 19 & 20, Rp. 237.

During the suppression hearing and at trial, the detective testified that after he described

Lena Hales as a frail, 80-year-old woman, the defendant said “something like” “a man meant to

kill the lady because all you had to do was push her down.” Palmer Vol. I Tp. 115; York Vol. III

Tp. 279-80. Through Detective Smith, the state also introduced State’s Exhibit 43. This exhibit
36

contained statements attributed to the defendant regarding burglary and larceny. York Vol. III

Tp. 302-304.

During argument on the defendant’s motion to dismiss, the state argued that its otherwise

purely circumstantial case was bolstered by “what may be deemed an admission of intent” to

commit murder, i.e., the “push her down” statement testified to by Detective Smith. York Vol.

III Tp. 359-60. Based on the statements, the trial court overruled the motion to dismiss. Id. Tp.

361.

During the charge conference, the following discussion arose over submission of

instructions on admissions and confessions as the trial court addressed defense counsel’s written

request, Rpp. 139-140:

THE COURT: Do you want 104.70, confession, or do you want
104.60, admissions?

MR. BRITT: I ask you consider that very seriously because there
is a statement that is in evidence. That statement is not a
confession with regard to the offense other than the burglary
offense, but it is admissions with regard to the more serious charge
of homicide.

MR. JACOBSON: We would withdraw our request for 104.7.

THE COURT: I’ll give you a chance to look at it over lunch hour.
I don’t want you to take my word for it.

MR. BRITT: The state would request both.

THE COURT: Well, I guess that solves it.

York Vol. III Tpp. 366-67.

Following the lunch break, the trial court elected to “start all over again on this charge

conference.” The court stated that he planned to “give you what I think I should give, absent any

special request from you people[.]” York Vol. III Tp. 374. The conference continued:
37

THE COURT: 104.60 will be admissions.

I believe the State has requested 104.70.

MR. BRITT: Yes, sir.

THE COURT: All right. Would you like to be heard with regard to
that, Mr. Jacobson?

MR. JACOBSON: Your honor, I think it should be limited to
the burglary and the larceny and not applied to the charge of first
degree murder.

THE COURT: What do you say about that, Mr. Britt?

MR. BRITT: Your Honor, it’s the State’s position that the
instruction as to confession does apply to the burglary and larceny,
and the admissions instruction applies to the murder case.

MR. JACOBSON: I don’t think so.

THE COURT: Well, if it was a homicide that resulted from the
burglary, why doesn’t – under the felony murder rule, why doesn’t
it apply to that?

MR. BRITT: It would.

THE COURT: I don’t know of any reason that it would not. All
right. So I will give the confession at the request of the State.

MR. JACOBSON: Note our exception for the record.

THE COURT: All right. The defendant objects and excepts to the
submission of that as a part of the charge, which is confession of
104.70 [sic], and that exception is duly noted.

York Vol. III Tpp. 375-76 (emphasis added).

In the guilt phase the jury was instructed under N.C. Patt. Jur. Inst. (Crim.) 104.60 and

104.70, respectively, that

[t]here is evidence which tends to show that the defendant has
admitted a fact or facts relating to the crimes charged in these
cases.

…
38

There is evidence which tends to show that the defendant
confessed that he committed the crimes of burglary and larceny in
this case.

York Vol. IV Tpp. 78-79; Rpp. 145-46.

The record shows that the argument on the motion to dismiss put defense counsel on

notice of the state’s view that the “push her down” statement constituted an admission of a fact

or facts related to first degree murder. York Vol. III Tp. 359-60. District Attorney Britt also

warned Mr. Jacobson that the statement regarding the burglary “is admissions with regard to the

more serious charge of homicide.” York Vol. III Tpp. 366. Based on these warnings, during the

colloquy on the admissions and confessions instructions, defense counsel expressly requested

that they be limited to the lesser felonies. Mr. Britt conceded that the confessions instruction

should be so limited. He also argued for expansion of the admissions instruction to include

murder as well. On this point, defense counsel disagreed. The trial court overruled the

defendant’s objection and noted his exception.

The trial court then misspoke in recording the focus of the defendant’s objection, which

was on 104.60 (admissions) instead of 104.70 (confessions). Obviously, since Mr. Britt

conceded the limited scope of the confessions instruction, there was nothing further to object to

on that score. The instructions themselves reflect that fact. In keeping with the defense

objection and Mr. Britt’s concession, the confession instruction was limited to the lesser felonies.

The remaining point of contention was the scope of the admissions instruction. With the

objection overruled and the exception noted on this point, the trial court gave the unlimited

admissions instruction in accordance with Mr. Britt’s request.

That instruction was reversible constitutional error. North Carolina law is clear that the

admissions instruction, N.C.P.I.—Crim. 104.60, “should not be given in a case where the

defendant does not in open court admit” to the conduct alluded to in the instruction. State v.
39

Shuford, 337 N.C. 641, 646-47, 447 S.E.2d 742, 745 (1990) (quoting State v. McCoy, 303 N.C.

1, 29, 277 S.E.2d 515, 535 (1981)). In Shuford, this Court held that because the defendant had

testified to engaging in the charged conduct, the “admissions” instruction was not improper.

Under Shuford, McCoy, and related cases, the “admissions” instruction is improper if the

defendant does not testify. Because the defendant never testified in this case, the jury should not

have been instructed that it could find he had made admissions to anything. Moreover, the vague

observation that someone else “must have meant” to do something cannot, as a matter of simple

logic, be stretched into an admission that the speaker, himself, engaged in or intended to engage

in that action. The admissions testified to by the defendants in Shuford and McCoy provide clear

counter-examples. In each case, the defendant testified that he personally took out a gun and

shot the victim. In this case, the statement attributed to the defendant by Detective Smith admits

to grabbing Ms. Hales’ arm and taking her money. The statement does not admit that the

defendant beat Ms. Hales or that he had any intention of killing her.

Thus, there was absolutely no evidence in the record that the defendant “admitted” or

“confessed” to murdering Ms. Hales. Indeed, there lies the gaping hole in the state’s case -- torn

all the wider by the complete lack of any forensic evidence linking the defendant to the scene of

her death. Moreover, the coercive circumstances under which these statements were attributed to

the defendant rendered them patently unreliable. See supra Issue III. That unreliability further

undercut the propriety of the “admissions” instruction in this case. Finally, these statements

were the sole evidence linking the defendant with the scene. Consequently, it surely affected the

outcome of this trial, and cannot be considered harmless error to have focused the jury’s

attention upon the statements through jury instructions -- particularly when the failure to limit

the instruction to the lesser felonies likely led the jury to misinterpret the statements as

“admissions” and “confessions” to murder. N.C. Gen. Stat. § 15A-1443(a).
40

The district attorney compounded the error in guilt-phase closing argument by

misrepresenting these statements to the jury as an admission of intent to kill and as a confession

to murder. This argument was grossly improper, unwarranted “by either the evidence or the

law…[and] calculated to mislead or prejudice the jury.” Consequently, the trial court had a duty

to intervene ex mero motu to protect the defendant’s statutory and constitutional rights to a fair

trial. U.S. Const. amends. V, VI, XIV; Darden v. Wainwright, 477 U.S. 168, 91 L.Ed.2d 144

(1986); N.C. Const. art. I §§ 19, 23, 27; State v. Britt, 288 N.C. 699, 713-14, 220 S.E.2d 283,

292-93 (1975).

With respect to the statement about “pushing her down,” the district attorney argued:

That statement is very important. That whoever did it meant to kill
Lena Hales…. look back at the things that Daniel Cummings said,
and the things that the evidence shows you, I would argue to you,
ladies and gentlemen, … that amounts to an admission by the
defendant of what his intention was on the morning of April the
19th, that whoever did this intended to kill her because, in his
words, all you had to do was push her down.

York Vol. IV Tp. 22.

Then, in his final summation to the jury, the district attorney argued:

He should be found guilty on all three counts. That’s what
the evidence says and that’s what the law says, and that’s what
Daniel Cummings told you when he talked to Ben Smith on April
the 26, 1994, when he confessed to the murder and admitted to the
murder of Lena Hales.

York Vol. IV Tp. 42 (emphasis added).

For the same reasons argued above, the district attorney’s statements mischaracterized

both the law and the evidence. Describing the statements in this case as admissions and

confessions to murder was extraordinarily prejudicial. The district attorney’s argument twisted

the facts and law so severely as to border on fabrication of the evidence. The argument rendered
41

the defendant’s capital trial fundamentally unfair, infected the verdicts with uncertainty, and

warranted the trial court’s ex mero motu intervention. Britt, supra.

In another attempt to create something out of nothing, the district attorney argued

inadmissible hearsay to the jury with respect to ostensible “conflicts” regarding the defendant’s

whereabouts on the night and early morning of April 18th and 19th. At trial, the court sustained

the defendant’s objection and granted his motion to strike when the district attorney elicited

hearsay statements regarding Detective Smith’s conversations with Cotton Dial and Bradley

Junior Locklear. York Vol. III Tpp. 286. Nevertheless, in guilt-phase closing argument the

district attorney argued that after talking with the defendant

What does Mr. Smith do? “Daniel, you know what you told me
the other day? Well, I went and talked to these people and what
you’re saying and what they’re saying just doesn’t match up.”
When you read between the lines, ladies and gentlemen, of what
he’s telling them and what they’re finding out don’t match up.
Somebody is not telling the truth about what they did and what
went on.

York Vol. V Tp. 23. The district attorney continued with an extended attack on the truthfulness

of the defendant’s statements to Detective Smith, arguing that “when he was confronted with

…the truth …again and he changes his story.” Id. Tpp. 24. Similarly, the district attorney

argued to the jury that after April 19th the defendant “went into hiding for four days. No one had

seen him in Red Springs. Then, lo and behold, ends up in jail in Sampson County[.]” Id. Tp. 33.

These arguments violated the defendant’s due process rights because the evidence

contradicts them. There was absolutely no evidence that the defendant ever “went into hiding.”

And, as discussed above in Issue III, Detective Smith’s investigation corroborated the statements

attributed to the defendant regarding his activities on the night of April 19th. The record also

refutes the notion that the defendant was trying to cover up his presence in the Pecan Orchard

area on that night. In his very first conversation with Detective Smith, the defendant purportedly
42

stated that he “never was at the Pecan Orchard” but in the next breath stated that he visited James

Teague -- who testified under oath that he lived in the Pecan Orchard. York Vol. III Tp. 36.

At most, the record shows a superficial confusion about where the precise borders of the

Pecan Orchard are and who lives in or near it. That confusion is unsurprising given the

defendant’s limited intellectual capacity and his obviously chaotic lifestyle in the days leading up

to April 19th. Particularly given the corroboration of the defendant’s statement and his own

ready concession to have visited Teague that night, the purported “denial” of being in the Pecan

Orchard neighborhood was far more likely to have been the product of memory loss, drug-addled

thinking, or simple misunderstanding about the events of that evening. The district attorney’s

argument misrepresented the evidence and went outside the record in violation of the defendant’s

rights to due process and a fair trial. The trial court should have intervened ex mero motu, and

the defendant must receive a new trial. Darden, supra; Britt, supra.

V. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY
AND CONSTITUTIONAL RIGHTS BY ADMITTING EVIDENCE
THAT DEFENDANT HAD PREVIOUSLY BEEN SENTENCED TO
DEATH IN A SEPARATE CAPITAL CASE.

Assignments of Error Nos. 25 & 28, Rpp. 238-39.

In Caldwell v. Mississippi, the United States Supreme Court held it reversible error under

the Eighth Amendment and the due process clause of the Fourteenth Amendment to reduce a

capital sentencing jury’s sense of responsibility for the life-or-death decision that lies in their

hands. 472 U.S. 320, 86 L.Ed.2d 231 (1985). A decade earlier, this Court held in State v. Britt

that evidence of a defendant’s prior death sentence is “inadmissible … highly improper and

incurably prejudicial” during the trial of his capital case. 288 N.C. 699, 713, 220 S.E.2d 283, 292

(1975). As the Britt Court observed, it is impossible to overestimate the damage done or to
43

“remove[] from the minds of the jurors … the fact that defendant had been on death row as a

result of his prior conviction for first degree murder.” 288 N.C. at 713, 220 S.E.2d at 292.

In State v. Warren, 348 N.C. 80, 499 S.E.2d 431, cert. denied, 525 N.C. 915, 142 L.Ed.2d

216 (1998), this Court also concluded that it was error for a defense witness to state on direct

examination that the defendant was already on death row. 348 N.C. at 128, 499 S.E.2d at 458

(holding error insufficient, standing alone, to warrant mistrial). The Warren opinion also held

that the prosecutor’s reference to the defendant’s separately-adjudicated capital murder

conviction did not require new sentencing under Britt because “the prosecutor never mentioned

that defendant was sentenced to death as a result of the [extraneous] conviction[.]” 348 N.C. at

127, 499 S.E.2d at 457.

This Court also considered whether Britt required relief in State v. Adams, 347 N.C. 48,

64, 490 S.E.2d 220, 228 (1997), cert. denied, 522 U.S. 1096, 139 L.Ed.2d 878 (1998). In

Adams, while cross-examining a defense witness, the prosecutor elicited the fact that the

defendant had been under a previous death sentence. This Court distinguished Britt on the basis

that the prosecutor had not made an intentional effort to bring this information to the jury. As in

Warren, this Court emphasized that the prosecution never made any special effort to focus the

jury’s attention on the existence of the prior death sentence. 347 N.C. at 64, 490 S.E.2d at 228.

Britt, Warren, and Adams exemplify the longstanding principle that, under North

Carolina’s capital jurisprudence, extraneous death sentences are irrelevant to the jury’s

deliberations. N.C. Gen. Stat. §§ 15A-2000(e)-(f) specify aggravating factors and mitigating

circumstances that a jury may consider during capital deliberations. The sentencing results of

prior capital proceedings are irrelevant under either section of the statute.

As this Court held in State v. Jones,
44

a sentence a defendant may be serving for some other crime is not
an aspect of the defendant’s character or of a circumstance of the
offense which may be considered … at a sentencing hearing after
the defendant has been convicted of first degree murder.

336 N.C. 229, 241, 443 S.E.2d 48, 53 (1994), cert. denied, 513 U.S. 1104, 130 L.Ed.2d 676

(1995); State v. Price, 331 N.C. 620, 418 S.E.2d 169 (1992), vacated on other grounds, 506 U.S.

1043, 122 L.Ed.2d 113 (1993) (life sentence in out-of-state murder charge irrelevant to capital

sentencing deliberations); State v. Brown, 306 N.C. 151, 182, 293 S.E.2d 569, 589 (1982), cert.

denied, 459 U.S. 1080, 74 L.Ed.2d 642 (1982) (extraneous sentencing information “is not

appropriate information for the jury to consider in its deliberations”); State v. Jones, 296 N.C.

495, 503, 251 S.E.2d 425, 429 (1979) (“the jury’s sentence recommendation should be based

solely on their balancing of the aggravating and mitigating factors before them”; extraneous

sentencing information “is not such a factor, … [and] has no place” in deliberative process).

The Britt-Warren-Adams line of cases concerns exclusion of extraneous death sentences

from capital deliberations, while the Jones-Price-Brown line of cases addresses the relevance of

extraneous life sentences. This distinction strengthens North Carolina’s rule excluding evidence

of extraneous death sentences from capital deliberations. Such exclusion is firmly rooted in the

state and federal constitutional guarantees of due process and fair, reliable sentencing

proceedings, as well as statutes under which extraneous death sentences are irrelevant as a matter
7
of law. Caldwell, supra; G.S. § 15A-2000(e) (defining aggravating factors); N.C. R. Evid.

Rule 401 (evidence must be relevant to be admissible).

7
Defendant recognizes that in Romano v. Oklahoma, 512 U.S. 1, 129
L.Ed.2d. 1 (1994), a 5-4 majority of the United States Supreme Court held
that Caldwell was not violated when a capital sentencing jury was told that
the defendant had previously been sentenced to death. He respectfully urges
that Romano was wrongly decided and hereby preserves the issue in the event
of further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).
45

In contrast, the Jones-Price-Brown line of cases upheld exclusion of evidence regarding

extraneous life sentences despite the powerful constitutional and statutory presumptions

requiring consideration of mitigating evidence by capital sentencing juries. U.S. Const. amends.

V, VIII, XIV; Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973 (1978); N.C. Const. art. I, §§ 19,

23, 27; State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); N.C. Gen. Stat. § 15A-2000(f)(9)

(allowing capital jury to consider any mitigating circumstance supported by the evidence).

Thus, the two lines of cases converge on the following point of logic: if a jury cannot be told that

a capital defendant has previously received a life sentence despite strong constitutional and

statutory reasons for admitting that evidence, a jury certainly cannot be told that a capital

defendant has previously received a death sentence, given strong constitutional and statutory

reasons for excluding that evidence.

In the instant case, defense counsel filed a Motion in Limine to suppress any reference to

the “any crimes of violence committed by the defendant … especially the murder of Burns

Babson in Brunswick County.” Rp. 171; State v. Cummings, 346 N.C. 291, 488 S.E.2d 550

(1997), cert. denied, 522 U.S. 1057, 139 L.Ed.2d 654 (1998) (Cummings I). Counsel contended

that evidence of Mr. Babson’s death did “not support” any aggravating factor, and that it was

“not an appropriate circumstance” for the capital sentencing jury’s consideration. Id. In a

hearing on the motion, the trial court stated “I understand that the Rules of Evidence do not

apply” in capital sentencing proceedings, and indicated his intention to admit the evidence,

including the existing death judgment against the defendant. York Vol. V Tp. 113; id. Tpp. 51,

53, 119 (trial court stating that “the Rules of Evidence do not apply and the balancing aspect of

that part has already been done”).

During argument on the motion, defense counsel recognized that this Court had approved

submission of the (e)(11) factor in Cummings I on the basis of evidence that the defendant had
46

killed Lena Hales, the deceased in the instant case. York Vol. V Tp. 37. Defense counsel

tackled that issue head-on, detailing at length the lack of connection between the two deaths and

therefore the irrelevance of the Babson killing to the instant case. York Vol. V Tpp. 37-39, 41-

43, 64 (discussing differences in underlying verdicts, modi operandi and geographical and

temporal proximity). The trial court reserved judgment on the admissibility of the prior death

sentence until the state presented evidence. York Vol. V Tp. 53.

Through its first sentencing witness, the state sought to introduce Exhibits 44-49, which
8
comprised both the indictments and the judgments for the Brunswick County offenses.

Defense attorney Carlton Mansfield specifically urged that the prior death judgment was

improper under State v. Price, 326 N.C. 56, 83-84, 388 S.E.2d 84, 100, vacated on other

grounds, 498 U.S. 802, 112 L.Ed.2d 7 (1990), in that the prior death sentence was irrelevant to

the jury’s sentencing deliberations as a matter of law. York Vol. V Tpp. 121-24. Mr. Mansfield

noted that in Price, this Court held a defendant’s existing sentence of life imprisonment from a

prior murder conviction was irrelevant to the jury’s sentencing deliberations. 326 N.C. at 83-84,

S.E.2d at 100. Defense counsel argued that under Price,

for the same reason that jurors are not allowed to know what the
sentence of a co-defendant is, or things of that nature, the jury has
to make an individualized determination in this case. For them to
know that Mr. Cummings has been previously sentenced to death,
diminishes their sense of responsibility in coming up with a
decision in this case based on this murder and these circumstances.
… We’ve been talking some this morning … about … the Rules
of Evidence and whether they apply. We know they don’t apply to
the sentencing hearing and yet the court has still said … some
things should be left out.

8
State’s Exhs. 44, 46, and 48 comprised the Brunswick County
indictments for (respectively)first degree murder, assault with a deadly
weapon with intent to kill, and robbery with a dangerous weapon. Exhibits 45,
47, and 49 comprised the judgments in those cases. York Vol. V Tpp. 134-40.
47

York Vol. V Tpp. 123-24. 9 Summing up with respect to all the proffered exhibits, but “even

more particularly 45” (the existing judgment of death), counsel concluded:

what the jury did in Brunswick County should not be presented to
this jury. … [T]his jury needs to make its factual determinations
and recommendation as to life or death based solely on those
factual determinations and not based on matters of law from
Brunswick County.

York Vol. V Tp. 124.

Despite finding Price inapposite, the trial court stated that he found the defense argument

compelling, particularly with respect to the Eighth Amendment-Caldwell concern that the

evidence would diminish the jury’s sense of responsibility regarding the sentence

recommendation:

THE COURT: … I can’t find anything that allows this particular
thing to come in.

What troubles me about it is, and along with the argument
that Mr. Mansfield made, this jury should decide this case based
upon this case … to give them the results of that case relieves them
of the responsibility and saying, well, heck, we don’t have to worry
about this. Somebody else has already done it. I don’t believe that
the entire system is designed so that somebody else can say, well,
we’re just ducking out on this because somebody else has done our
work for us.

York Vol. V Tpp. 127-28.

In response, the district attorney never argued that the existing death sentence was

relevant in any respect to the determination of the defendant’s sentence for capital murder in the

9
These passages show that, in addition to the evidentiary basis for the
objection, counsel also argued that submission of the existing death judgment
was improper because it would reduce the jury’s sense of responsibility
during death-penalty deliberations. York Vol. V Tpp. 122-24. Thus, the
defendant invoked the Eighth Amendment concerns animating Caldwell v.
Mississipi, 472 U.S. 320, 86 L.Ed.2d 231 (1985). See supra n.7.
48

instant case. He argued that the prior death sentence should be admitted for two reasons. Both

arguments were non sequiturs.

First, the district attorney argued that the jury would be curious about the sentence in the

prior murder case:

MR. BRITT: … I think this jury is entitled to know that Exhibits
44, 46, and 48 are Indictments.

THE COURT: That’s right.

MR. BRITT: Those are just charges, and that leaves the jury
hanging in the balance in terms of we’ve got these charges and it
doesn’t address the flip side of what happened.

THE COURT: And that would be the first question they would put
on a piece of paper and ask the judge after they go in and start
deliberating, what happened in the Brunswick County cases.

York Vol. V Tpp. 127-28.

Under North Carolina law, juror curiosity about a particular issue does not render the

issue relevant to their deliberations -- particularly when the subject under deliberation is

whether a capital defendant should live or die. For example, in State v. Smith, 320 N.C. 404,

421-22, 358 S.E.2d 329, 358-59 (1987), this Court held that a deadlocked capital sentencing jury

may not be accurately informed that inability to agree on a sentence automatically results in

imposition of a life sentence under N.C. Gen. Stat. § 15A-2000(b).

The reason North Carolina juries are not entitled to know the law -- even if they ask

about it -- is this Court’s refusal “to make any ruling which would tend to encourage a jury to

avoid its responsibility” to recommend a sentence based on the evidence before it. State v.

McCarver, 341 N.C. 364, 389, 462 S.E.2d 25, 39 (1995), cert. denied, 517 U.S. 1110, 134

L.Ed.2d 482 (1996). As defense counsel argued and the trial court agreed, the same concern

militated against informing the defendant’s capital sentencing jury that he was already under an
49

existing sentence of death. York Vol. V Tpp. 127-28 (admitting existing death sentence into

evidence encourages jury to “just duck[ ] out on this because somebody else has done our work

for us.”).

The second argument that the state offered to support admission of the prior death

sentence was another classic non sequitur: the district attorney contended that the prior sentence

was admissible because it had been adjudicated. The state urged that since this Court approved

submission of the (e)(11) course of conduct aggravator in Cummings I based on unadjudicated

evidence of Ms. Hales’ death, evidence of the defendant’s adjudicated (and presumably, more

reliable) death sentence should be admissible to support the (e)(11) aggravator in the instant

case:

MR. BRITT: Not only the United States Constitution and our
judicial system, but by the framers of the North Carolina court
system. It went through. He had a jury of his peers in Brunswick
County to hear that evidence. They decided the guilt of the case.
They decided what the appropriate sentence ought to be under the
instructions provided by the court, which included an instruction
on whether or not his was a part of a course of conduct … and they
found that it was and that … was the Lena Hale’s [sic] murder.
And all we’re doing in this case is we’re reversing the incidents in
their guilt/innocence phase dealt with the murder of Mr. Babson
[sic].

York Vol. V Tp. 130.

Once again, the state’s argument fails as a matter of law and logic. Warren, 348 N.C. at

128, 499 S.E.2d at 458 (error to admit evidence in capital sentencing proceeding of defendant’s

death sentence in separate murder case). The fact that this Court approved both submission of

the (e)(11) factor in Cummings I and the defendant’s death sentence in that case simply does not

establish the relevance of that death sentence toward proving the (e)(11) aggravating factor (or

any other aggravating factor) in the instant case.
50

Nevertheless, the trial court overruled the defendant’s objection to the admission of

State’s Exhibit 45. York Vol. V Tpp. 131-32. The trial court stated that the decision was “based

upon the language which appears in the case of State v. Cummings in 346 NC 291, at pages 328

and 329[.]” Id. Tp. 132.

The trial court’s decision was error. In approving the submission of the (e)(11) factor in

Cummings I, this Court did not overrule existing precedent barring irrelevant, extraneous

sentencing information from capital proceedings. Indeed, to turn Mr. Britt’s argument on its

head, it was precisely the fact that the Hales charges were unadjudicated, with no conviction or

sentence at issue, that created a question at trial and on appeal. In short, the admissibility of an

extraneous death sentence in capital proceedings was simply not before this Court in Cummings

The defense correctly argued that under State v. Price, only relevant evidence is

admissible in capital sentencing hearings. 326 N.C. at 83-84, 388 S.E.2d at 100; N.C. R. Evid.

401. The defense also correctly argued that, under Price, sentences imposed in other

proceedings are irrelevant to capital deliberations in North Carolina. Id. (holding irrelevant as a

matter of law evidence of the defendant’s existing life sentence in another jurisdiction); Warren,

supra; Jones, supra.

This Court forcefully made the same point in Britt, 288 N.C. at 713, 220 S.E.2d at 292.

There, this Court held that evidence of the defendant’s prior death sentence was “inadmissible

… highly improper and incurably prejudicial” during the trial of his capital case. As this Court

observed in Britt, it was impossible to overestimate the damage done or to “remove[] from the

minds of the jurors … the fact that defendant had been on death row as a result of his prior

conviction for first degree murder.” 288 N.C. at 713, 220 S.E.2d at 292. As Warren and Price

make clear, the fact that the sentence at issue in Britt had been imposed and vacated in the same
51

case then currently at trial, while the defendant’s here was imposed in separate proceedings, is a

distinction without a difference. Evidence that the defendant was already under a sentence of

death for the Brunswick County murder conviction was equally irrelevant and inadmissible in

the instant case.

Nevertheless, the defendant’s repeated objections were overruled, and the state was

allowed to introduce the Brunswick County death judgment. Thus, the defendant’s capital

sentencing jury deliberated knowing that he was already under a death sentence for the murder of

Burns Babson. York Vol. V Tpp. 44, 53-54, 58, 110, 132, 133, 136, 142; State’s Exh. 45;

Cummings I.

As noted above, this Court found passing references to prior death sentences to be

harmless error in Warren and Adams, supra. These cases are sharply distinguished. In the

instant case the prosecutor deliberately went to considerable lengths to elicit evidence of the

prior death judgment from his own witness, then focused the jury’s attention on the issue by

having the judgment read in its entirety, then passed to the jury for their inspection:

The defendant, Daniel Cummings, Jr., having been convicted of
murder in the first degree by unanimous verdict of the jury, duly
return don the 16th day of December, 1994, during the December
12, 1994 term of the Superior Court of Brunswick County, North
Carolina, and the jury having unanimously recommended the
punishment of death, it is therefore ordered and adjudged that
Daniel Cummings, Jr. be and is hereby sentenced to death and the
Sheriff of Brunswick County, North Carolina, shall forthwith
deliver the defendant to the Warden of the State’s penitentiary at
Raleigh, North Carolina, where the Warden on the 17th day of
February, 1995, between the hours of 12:01 a.m. and 6:00 p.m.
shall cause the defendant, Daniel Cummings, Jr., to be put to death
as by law provided. This is the 16th day of December, 1994.

York Vol. V Tp. 136; State’s Exh. 45.
52

The death judgment was then passed to the jury, with the instruction that although the

document had already been read aloud, the jurors “may want to read the information … for

yourselves.” York Vol. V Tp. 142. Jurors were instructed to study the document for “as long as

you like” in order to thoroughly “familiarize” themselves with the contents. York Vol. V Tpp.

142-43.

As defense counsel strenuously argued to the trial court, the fact that the defendant was

under an existing sentence of death was wholly irrelevant to the state’s case. The district

attorney never argued that the death judgment was relevant to any of the statutory aggravating

factors submitted in this case -- or to any aggravating factor at all. See section 15A-2000(e)(1)-

(11) (specifying aggravating factors). The only possible function of this evidence was as

impermissible as it was inevitable: the district attorney sought to lower the psychological and

emotional barrier to the jury’s recommending death in the instant case. Given the district

attorney’s strenuous efforts to elicit this irrelevant evidence and his encouraging the jury to focus

intensely upon it, “[t]he probability that the jury’s burden was unfairly eased by that knowledge

is so great that [this Court ] cannot assume an absence of prejudice.” Britt, 288 N.C. at 714, 220

S.E.2d at 292 The defendant must receive a new sentencing hearing.

VI. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY
AND CONSTITUTIONAL RIGHTS BY SUBMITTING THE
AGGRAVATING FACTOR SPECIFIED UNDER N.C.G.S. § 15A-
2000(E)(6) TO THE SENTENCING JURY.

Assignments of Error No. 31, Rp. 240.

Introduction

In Zant v. Stephens, the United States Supreme Court held that capital sentencing statutes,

in order to comport with the demands of due process and the Eighth Amendment, must provide

some means of genuinely narrowing the applicability of the death sentence through, for example,

specification of aggravating factors without proof of which a death sentence may not be
53

imposed. 462 U.S. 862, 77 L.Ed.2d 235 (1982). North Carolina v. Pearce stands for the more

long-standing principle that the double jeopardy clause of the Fifth Amendment forbids multiple

punishments for the same offense. 395 U.S. 711, 23 L.Ed.2d 656 (1969); N.C. Const. art. I §

19; State v. Cherry, 298 N.C. 86, 113, 257 S.E.2d 551, 567 (1979).

In Cherry, this Court applied these principles to hold that when

an underlying felony has been used to obtain a conviction of first
degree murder, it has become an element of that crime and may not
thereafter be the basis for additional prosecution or sentence.
Neither do we think the underlying felony should be submitted to
the jury as an aggravating circumstance in the sentencing phase
when it was the basis for, and an element of, a capital felony
conviction.

298 N.C. at 113, 257 S.E.2d at 567.10 Similarly, in State v. Quesinberry, 319 N.C. 228, 354

S.E.2d 446 (1987), this Court held that submission of multiple aggravating factors proved by

same evidence violates due process and renders capital sentence arbitrary and capricious.

This Court narrowed the scope of Cherry in State v. Oliver, 302 N.C. 28, 62, 274 S.E.2d

183, 204 (1981). There, this Court held that the pecuniary gain aggravating factor specified in

section 15A-2000(e)(6) could be submitted in a felony murder-robbery case. This Court

distinguished Cherry by defining the focus of the pecuniary gain aggravating factor was on

“motive” as opposed to “intent,” and therefore constituted a sentencing factor instead of an

element of the underlying offense. This Court reasoned that since “motive” was not an

“element,” it could not merge with the underlying felony under Cherry and remained a legitimate

10
Although the Cherry Court stated that it was unnecessary to address
the question presented under double jeopardy analysis, the opinion relies on
that analysis by applying the merger rule and by citing cases that were
themselves determined under double jeopardy principles. Id. Consistent with
these facts, Cherry and related cases have been generally interpreted as
turning on double jeopardy analysis. E.g., State v. Quesinberry, 319 N.C.
228, 354 S.E.2d 446 (1987); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183
(1981).
54

factor in aggravation. 302 N.C. at 62, 274 S.E.2d at 204. This Court applied the same

reasoning to hold that the pecuniary gain aggravator could also be submitted in a felony murder-

burglary-larceny case. State v. Chandler, 342 N.C. 742, 467 S.E.2d 636, cert. denied, 519 U.S.

875, 136 L.Ed.2d 133 (1996).

The United States Supreme Court recently repudiated the reasoning in Oliver and

Chandler on due process grounds in Apprendi v. New Jersey, ___ U.S. ___, 147 L.Ed.2d 435

(2000). Consequently, this Court has a duty to overrule Chandler and order a new sentencing

hearing in this case.

Facts and Analysis

At the close of the guilt-phase evidence in the instant case, the jury returned guilty

verdicts on three charges: first degree burglary, first degree murder, and felonious larceny. Rpp.

163-65. With respect to the murder charge, the jury rejected the state’s theory of premeditation

and deliberation, and relied on the felony murder theory alone. Rp. 164. The basis for the

underlying felony conviction was a statement attributed to the defendant that contained

admissions to burglarizing the Hales home in order to get money to buy drugs. State’s Exh. 43;

York Vol. IV Tpp. 302-304.

Jury instructions on the elements of burglary and felony murder specified that the intent

element of the underlying felony in the burglary charge was “the intent to commit larceny.”

Rpp. 147-49, 152-53; N.C. Patt. Jur. Inst. (Crim.) 214.10. Following the pattern, the trial court

defined larceny as

the taking and carrying away of the property of another without the
owner’s consent with the intent to permanently deprive the owner
of its use knowing that he was not entitled to take the property and
that it was taken during the commission of a burglary or a breaking
and entering.
55

Rpp. 148, 156; N.C. Patt. Jur. Inst. (Crim.) 216.30; Chandler, 342 N.C. at 752, 467 S.E.2d at 642

(“the crucial element in burglary is the intent to commit larceny”); State v. Ball, 344 N.C. 290,

307, 474 S.E.2d 345, 355 (1996), cert. denied, 520 U.S. 1180, 137 L.Ed.2d 561 (1997) (larceny

is “the specific intent element of burglary” essential to providing “substantial evidence of each

element of the crime of burglary”).

In Cherry, this Court ordered a new capital sentencing hearing because the defendant’s

sentence for felony murder had been aggravated from life imprisonment to death when the jury

found the existence of the section 15A-2000(e)(5) aggravating factor. That factor specified that

the killing occurred when the defendant was engaged in a robbery with a firearm -- which was

exactly the felony underlying the felony murder conviction. 298 N.C. at 113, 257 S.E.2d at 567.

Oliver, in contrast, upheld submission of the pecuniary gain aggravating factor specified in

section 15A-2000(e)(6) in a felony murder-robbery case, by labeling the pecuniary gain factor as

involving “motive” as opposed to “intent,” and therefore as a “sentencing factor” instead of an

“element” of the underlying offense. 302 N.C. at 62, 274 S.E.2d at 204.

During the charge conference in the sentencing hearing in this case, the defendant

objected to the state’s request for the aggravating factor specified in N.C. Gen. Stat. § 15A-

2000(e)(6), that the killing was committed for pecuniary gain. Trial counsel argued and the state

conceded that under this Court’s precedents, the (e)(6) aggravating factor focuses on a

defendant’s “intent” or purpose in committing the killing. York Vol. V Tpp. 269 (argument of

D.A. Britt), 279 (argument of attorney Mansfield); State v. Jennings, 333 N.C. 579, 621, 430

S.E.2d 188, 210, cert. denied, 510 U.S. 1028, 126 L.Ed.2d 602 (1993) (“The gravamen of the

pecuniary gain aggravating circumstance is that the killing was for the purpose of getting money

or something of value” (emphasis added; internal citation and quotation marks omitted)).
56

Defense counsel urged that the jury could not have returned guilty verdicts on the

underlying felonies or on the felony murder charge without finding that the defendant had acted

with the intent to gain something of value. Id. Tp. 280. Counsel argued that larcenous intent

(the intent to take property of another) is identical to the “intent” to take something of value at

issue in the (e)(6) aggravating factor. Id. Counsel contended that under Cherry, this identical

intent element could not be used both as a basis for convicting the defendant of felony murder

and for aggravating his sentence from life imprisonment without parole to death. York Vol. V

Tp. 274 (citing Cherry, 298 N.C. 86, 257 S.E.2d 551).

The state argued that the issue had been decided against the defendant by the majority

opinion.11 in Chandler, supra. York Vol. V Tpp. 281-84. As noted above, Chandler held that

“the crucial element in burglary is the intent to commit larceny.” 342 N.C. at 752, 467 S.E.2d at

642. The Chandler opinion also stated that stealing property is the “usual object or purpose” of

burglary. 342 N.C. at 755, 467 S.E.2d at 643.

The Chandler opinion then underscored the identity of the (e)(6) aggravator and the

intent element underlying a felony murder-burglary-larceny case. First, the Court rejected

Chandler’s claim that a jury unable to find premeditation and deliberation could not have found

sufficient evidence of “the requisite state of mind to kill for pecuniary gain.” 342 N.C. at 754,

467 S.E.2d at 643. The Court reasoned that Chandler’s “motive for breaking and entering …

was to steal.” Id. This “motive” is, of course, identical to the “crucial element in burglary[:] the

intent to commit larceny.” 342 N.C. at 752, 467 S.E.2d at 642. Completing the circle, the

majority held that evidence of the intent to commit larceny supported a jury finding of pecuniary

“motive.” Id.; but see State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987) (illogical to

11
In dissent, Justice Orr cautioned against the expansive application
of the pecuniary gain aggravator, and concluded that the evidence in the case
was insufficient for submission of that aggravator.
57

divorce pecuniary motive from act of robbery; submission of multiple aggravating factors proved

by same evidence violates due process and renders capital sentence arbitrary and capricious).

The Chandler majority again emphasized the identity of the “state of mind” at issue in

the (e)(6) aggravator, 342 N.C. at 754, 467 S.E.2d at 643, and the intent element essential to a

felony murder-burglary-larceny case. At this point in the opinion, the majority rejected

Chandler’s argument that he lacked a pecuniary motive because he sought drugs -- not money --

during the burglary. Again, the majority held that the same evidence that proved “the intent to

steal” for the underlying felony of larceny proved pecuniary motive under (e)(6). 342 N.C. at

755, 467 S.E.2d at 643; but see Quesinberry, supra.

As an alternative argument, Chandler urged (as did the defendant in the instant case) that

the (e)(6) aggravator was unconstitutional under Cherry, because -- as the Chandler opinion

conceded -- the intent to take another’s property, which is the “usual object and purpose” of

burglary, is the intent to gain something of value. Because that intent “is inherent in, and a

necessary element of … felony murder” in a felony murder-burglary-larceny case, under the state

and federal constitutions it merges with the underlying felony and cannot be submitted to the

jury both as a basis for the felony murder conviction and as a basis for aggravating a life

sentence to death. Cherry, 298 N.C. at 112, 257 S.E.2d at 567 (citing merger rule, derived from

double jeopardy clause of U.S. Const. amends. V, XIV and N.C. Const. art. I, § 19);

Quesinberry, supra (upholding defendant’s rights to due process and freedom from arbitrary and

capricious punishment, derived from U.S. Const. amends. V, VIII, XIV and N.C. Const. art. I, §§

19, 27).

The Chandler majority rejected that argument as well, invoking Oliver, 302 N.C. at 62,

274 S.E.2d at 204. As noted above, the Chandler opinion had conceded that “the crucial

element” of burglary is the intent to take another’s property. The opinion also demonstrated
58

neatly that larcenous intent overlaps completely as an issue of fact and proof with the (e)(6)

“purpose of getting … something of value.” Nevertheless, following Oliver, the Chandler

opinion labeled as “motive” the “purpose of getting … something of value” at issue in the (e)(6)

aggravating factor. The opinion then stated that “motive,” unlike “intent,” “does not constitute

an element of the offense,” but instead is a sentencing factor. The opinion concluded that

“[p]ecuniary gain is not … an essential element” of larceny, burglary with intent to commit

larceny, or felony murder based on an underlying burglary-larceny. Chandler, 342 N.C. at 755-

56, 467 S.E.2d at 643-44 (internal citations and quotation marks omitted); but see Quesinberry,

supra (illogical to divorce pecuniary motive from act of robbery).

During the charge conference in the defendant’s case, defense counsel conceded that he

was invoking Cherry – and its constitutional bases in the rights to due process and the freedoms

from double jeopardy and arbitrary, capricious punishment -- without having read Chandler.

The trial court rejoined that, in overruling the defendant’s objection to the (e)(6) aggravator, he

was “not relying on Chandler.” York Vol. V Tp. 285. Instead, the trial court relied on the fact

that under North Carolina law “larceny is not an element of the offense of burglary.” York Vol.

V Tp. 289. The trial court also relied “on the language that’s at page 333 in the case of State v.

Cummings” showing the presence of the (e)(6) aggravator in that case, involving the same

defendant. 346 N.C. 291, 333, 488 S.E.2d 550, 575 (1997), cert. denied, 522 U.S. 1057, 139

L.Ed.2d 654 (1998) (Cummings I); York Vol. IV Tp. 284.

The trial court was correct that the completed offense of larceny is not an element of the

offense of burglary. The crucial points, however, made plain by Chandler and Ball, supra, are

that (1) larcenous intent was the “crucial element” of this felony murder-burglary-larceny case;

and (2) as defense counsel argued, that intent overlapped completely as a question of fact and

proof with the pecuniary gain aggravator.
59

Moreover, Cummings I is not dispositive on the issue raised here. The only citation to the

(e)(6) aggravator on the cited page of the opinion occurs in the context of proportionality review.

Compare York Vol. V Tp. 274 (D.A. Britt referring the Court to “Headnote 19,” which addresses

proportionality). On page 333, the opinion merely states that the jury found the aggravating

factors specified under N.C. Gen. Stat. § 15A-2000(e)(6) and –2000(e)(11) (course of conduct).

Consequently, the trial court rightly remained “worried” about submitting (e)(6), for three

reasons. First, Cummings I was clearly distinguished because it involved findings of both

premeditation and deliberation and felony murder. York Vol. V Tp. 289. Second, Cummings I

“does not cite a case” to justify submitting (e)(6) in a felony murder-burglary-larceny case.12 Id.

Third, the court was bothered by “the multiplicity of purposes of the underlying course of

conduct.” York Vol. IV Tp. 284-85; cf. Quesinberry, supra (forbidding duplicate aggravators

based on same evidence).

Finally, while the trial court did not rely on Chandler in overruling the defendant’s

objection, York Vol. V Tp. 285, Chandler itself is no longer good law under Apprendi v. New

Jersey, ___ U.S. ___, 147 L.Ed.2d 435 (2000). In Apprendi, the New Jersey Supreme Court

rejected a due process challenge to a sentence enhancement based on the state’s “hate crime”

law. That statute potentially doubled the maximum penalty for the defendant’s underlying

conviction. The enhancement was applied upon a trial court’s finding by the preponderance of

12
In Cummings I, appellate counsel challenged the submission of the
(e)(6) factor with the concession that the issue had “been decided contrary
to his position previously by this Court.” 346 N.C. at 332, 488 S.E.2d at
574. This Court can take judicial notice of the fact that in their brief on
appeal for Cummings I, counsel argued that through submission of (e)(6) based
on felony murder-armed robbery, the defendant “was being punished for the
same act twice” and asked this Court to reconsider Oliver on both double
jeopardy and Eighth Amendment grounds. State v. Cummings, No. 4A95
(Defendant’s Brief on Appeal) at p. 110.
60

the evidence that the defendant had “acted with a purpose to intimidate … because of race”. ___

U.S. at ___, 147 L.Ed.2d at 442 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 2000)).

Like the defendant in this case, Apprendi urged that the sentence enhancement statute

applied in his case violated his constitutional rights. Specifically, Apprendi argued that the

enhancement statute focused on his intent at the time of the criminal act, which was an essential

element that had to be found by a jury beyond a reasonable doubt. ___ U.S. at ___, 147 L.Ed.2d

at 443 (citing In re Winship, 397 U.S. 35, 25 L.Ed.2d 368 (1970)). A majority of the New

Jersey Supreme Court disagreed. The majority reasoned, as did this Court in Chandler, that the

challenged statute focused not on “intent” as an “element” of an offense, but on a “sentencing

factor” related to “motive.” State v. Apprendi, 159 N.J. 7, 24, 731 A.2d 485, 494 (1999).

The United States Supreme Court reversed. Invoking the Fourteenth Amendment, the

Court applied the principle stated in Jones v. United States, 526 U.S. 227, 143 L.Ed.2d 311

(1999) that

under the Due Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth Amendment, any fact
(other than prior conviction) that increases the maximum penalty
for a crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt.

___ U.S. at ___, 147 L.Ed.2d at 446 (quoting Jones, 526 U.S. at 243 n.6, 143 L.Ed.2d at 326

n.6). The Court then expressly rejected New Jersey’s attempt to evade Jones by labeling the

mental state at issue as “not an ‘element’ of a distinct … offense, but rather the traditional

‘sentencing factor’ of motive.” ___ U.S. at ___, 147 L.Ed.2d at 456. The Court reasoned that

the statute,

[b]y its very terms, … mandates an examination of the defendant’s
state of mind -- a concept known well to the criminal law as the
defendant’s mens rea. … [T]he fact that the language and structure
of the … criminal offense is identical in relevant respects to the
language and structure of the [enhancement] provision
61

demonstrates to us that it is precisely a particular criminal mens rea
that the … enhancement seeks to target. The defendant’s intent in
committing a crime is perhaps as close as one might hope to come
to a core criminal offense element.

___ U.S. at ___, 147 L.Ed.2d at 456-57 (emphasis added; footnotes and internal citations

omitted).

The Court further noted that Black’s Law Dictionary “unsurprisingly defines ‘purpose’ as

synonymous with intent,” and cited New Jersey’s own definition of the statutory terms to

conclude that the enhancement statute lay “squarely within the inquiry” into a defendant’s

mental state. ___ U.S. at ___ n.17, 147 L.Ed.2d at 457 n.17. The Court concluded that reliance

on the labels “motive,” “intent,” “sentencing factor,” and “element” is unavailing against the

Constitution’s guarantee of due process of the law, and reiterated the longstanding constitutional

principle that

a State cannot through mere characterization change the nature of
the conduct actually targeted. It is as clear as day that this … law
defines a particular kind of intent, and a particular intent is more
often than not the sine qua non of a violation of a criminal law.

___ U.S. at ___ & n.18, 147 L.Ed. 2d at 457 & n.18.

Thus, it is also “as clear as day” that under Apprendi the reasoning in Chandler fails

constitutional muster. As the Chandler decision itself makes clear, the state of mind at issue in

the (e)(6) aggravator is identical, in terms of substance and method of proof, to the state of mind

element in the felony underlying a felony murder-burglary-larceny conviction. Apprendi flatly

rejects, on due process grounds, the attempt to create a distinction without a difference by putting

two different labels (“motive” versus “intent”) on this single factual issue.

With Chandler’s reasoning clearly repudiated on due process grounds by Apprendi, this

Court has a duty to overrule Chandler, and the constitutionality of the (e)(6) aggravating factor

in this felony murder-burglary-larceny case is governed by Cherry. Under Cherry, the jury’s
62

determination that the defendant entered the Hales home with “the purpose of getting money or

something of value,” Jennings, 333 N.C. at 621, 430 S.E.2d at 210, merged, along with the

finding that the defendant entered the home with the intent to steal, into the burglary conviction

that provided the basis for guilty verdict on felony murder. Because the defendant’s purpose

was “inherent in, and a necessary element of …felony murder” under the felony murder-

burglary-larceny theory tried in this case, it was constitutional error to re-submit it as an

aggravating factor under N.C.G.S. § 15A-2000(e)(6). Cherry, 298 N.C. at 112-113, 257 S.E.2d

at 567-68; U.S. Const. amends. V, VIII, XIV; N.C. Const. art. I, §§ 19, 23, 27.

The state cannot prove the error harmless. “Had the jury not considered [an element of ]

the underlying felony as an aggravating circumstance, it may well have decided that the

remaining aggravating circumstances were not sufficiently substantial” to warrant death.

Cherry, 298 N.C. at 114, 257 S.E.2d at 568. The state’s burden is compounded by the jury’s

finding of the statutory mitigating circumstance that the defendant was suffering from a mental

or emotional disturbance, which by law must be given weight during sentencing deliberations.

State v. Hedgepeth, 350 N.C. 776, 788, 517 S.E.2d 605, 613 (1999). Consequently, the

defendant must receive a new sentencing hearing.

Moreover, even if the (e)(6) aggravator could have been properly submitted to the jury

under the state and federal constitutions, the evidence was insufficient to warrant it. As Justice

Orr noted in his dissent in Chandler, “there must be some evidence that the motive for killing

was pecuniary gain.” Chandler, 342 N.C. at 768, 467 S.E.2d at 652. Where, as here, the

evidence establishes only that the “defendant clearly had a pecuniary gain motive” for the

burglary, and the jury has rejected the state’s proof of premeditation and deliberation, “it is only

unsupported speculation that the actual killing had anything to do with seeking pecuniary gain.”
63

Id. In this case, as the district attorney argued to the jury in the guilt phase, the evidence

contradicted any pecuniary motive for the killing itself:

The condition of the house would suggest that once he got the
money, he then beat her up because none of the house was
ransacked. … He didn’t go through searching the house turning
things over. Why? There was no need. He had what he went
there to get and that was the money. So then he turned his
attention on her and that’s when the beating occurred.

York Vol. IV Tp. 32.

Submitting the (e)(6) aggravating factor on the basis of insufficient evidence was plain

error, rendering the sentencing hearing fundamentally unfair in violation of the defendant’s

rights to due process and a fair and reliable capital sentencing hearing. State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (establishing plain error standard); U.S. Const. Amends.

VI, VIII, XIV; Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560 (1979) (citing due process

clause of Fourteenth Amendment); Ford v. Wainwright, 477 U.S. 399, 411, 91 L.Ed.2d 335, 347

(1986) (requiring “heightened standards of reliability” in all capital proceedings); N.C. Const.

Art. I, §§ 19, 27; State v. Earnhardt, 307 N.C. 62, 66 n.1, 296 S.E.2d 649, 652 n.1 (1982)

(Jackson standard identical to that imposed by N.C.G.S. § 15A-1227); State v. Williams, 317

N.C. 474, 482-83, 346 S.E.2d 405, 409-411 (1986) (Williams II) (no evidence to support

aggravating factor; death sentence vacated); State v. Williams, 304 N.C. 394, 425, 284 S.E.2d

437, 456 (1981), cert. denied, 456 U.S. 932, 72 L.Ed.2d 450 (1982) (Williams I) (same).

N.C.G.S. § 15A-2000(d)(2). Defendant must receive a new sentencing hearing.

VII. THE TRIAL COURT VIOLATED DEFENDANT’S STATUTORY
AND CONSTITUTIONAL RIGHTS BY FAILING TO SUBMIT
REQUESTED INSTRUCTIONS ON MITIGATING
CIRCUMSTANCES.

Assignment of Error No. 34, Rpp. 240-41.
64

At the close of the evidence in the sentencing phase, the trial court denied several of the

defendant’s requested jury instructions on nonstatutory mitigating circumstances. York Vol. V

Tpp. 301, 310. The omitted instructions included the following:

…

3. The defendant cooperated with Red Springs Law
Enforcement officers regarding his burglary of the home of
Lena Hales prior to arrest.

4. The defendant’s culpability for the burglary of the home of
Lena Hales in Red Springs could not have been attributed
to this defendant without his confession, which he provided
to law enforcement officers freely and voluntarily.

…

17. The defendant voluntarily confessed to Brunswick County
Law Enforcement officers with respect to the murder of
Burns Badson [sic].

18. The defendant cooperated with Brunswick County Law
Enforcement officers in the investigation of the murder of
Burns Babson.

Rpp. 268-69.

The trial court had a duty under the Eighth and Fourteenth Amendments to submit all

requested mitigating instructions reasonably supported by the evidence. U.S. Const. amends. V,

VIII, XIV; Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973 (1978); N.C. Const. art. I, §§ 19, 23,

27; State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979). In State v. Cummings, 346 N.C. 291,

488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1057, 139 L.Ed.2d 654 (1998), this Court found

that the defendant’s self-incrimination with respect to the killing of Burns Babson was voluntary

under the “Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and

Article I, Sections 19 and 23 of the North Carolina Constitution.” 346 N.C. at 313, 318, 488

S.E.2d at 563, 565. In the instant case, the trial court found that the defendant’s self-
65

incrimination with respect to the death of Lena Hales was done “freely, voluntarily, and

understandingly[.]” Palmer Vol. II Tp. 207. Consequently, the jury heard evidence of these

statements and the circumstances under which they were given during the guilt and sentencing

phases of this capital trial. York Vol. III Tpp. 279-80, 300-305; York Vol. V Tpp. 96-98.

Nevertheless, the trial court denied the defendant’s request for jury instructions on the

basis that he had filed motions to suppress evidence of his cooperation with law enforcement

officials and had objected to the introduction of that evidence at trial. York Vol. V Tpp. 301,

310; State v. Robbins, 319 N.C. 465, 356 S.E.2d 279, cert. denied, 484 U.S. 918, 98 L.Ed.2d 226

(1987). The defendant respectfully asks this Court to reconsider Robbins and order a new

sentencing hearing in this case.

Robbins clearly violates the rule forbidding that “one constitutional right should have to

be surrendered in order to assert another.” Simmons v. United States, 390 U.S. 377, 394, 19

L.Ed.2d 1247 (1968). The federal and state constitutions guaranteed the defendant his rights to

plead not guilty, to challenge the voluntariness of the statements ascribed to him, and to receive

the effective assistance of counsel in mounting his defense. U.S. Const. amends. V, VI, XIV;

N.C. Const. art. I, §§ 19, 23. He also had the constitutional right under Lockett, supra, to have

the sentencing jury consider all relevant mitigating evidence. Robbins forced the defendant to

“give up … a valid [Eighth] Amendment claim or, in legal effect, to waive his Fifth Amendment

privilege against self-incrimination” and his Sixth Amendment right to the effective assistance

of counsel. Simmons, 390 U.S. at 394. The “undeniable tension … created” by this Hobson’s

choice is “intolerable” as a matter of federal constitutional law. Id.

Because the defendant objected to the trial court’s decision, the state has the burden of

proving the constitutional error harmless. N.C. Gen. Stat. § 15A-1443(b). Moreover, there is a

heavy burden on the state to prove knowing, voluntary, and intelligent waiver of constitutional
66

rights. Miranda, 384 U.S. at 475, 16 L.Ed.2d at 724. The reviewing court must “indulge every

reasonable presumption against waiver.” Johnson v. Zerbst, 304 U.S. at 464, 82 L.Ed.2d 1461.

“Doubts must be resolved in favor of protecting the constitutional claim.” Michigan v. Jackson,

475 U.S. 625, 633, 89 L.Ed.2d 631 (1986).

In order to make an intelligent choice regarding the surrender of one or more of these

competing constitutional rights, the defendant should have been informed on the record before

his attorneys pursued the suppression hearings. In this case, while the statements attributed to

the defendant provided the only link between him and the scene of Ms. Hales’ death, as argued

above in Issue IV, the statements constituted, at most, admissions or confessions to burglary and

larceny only. Under these circumstances, the defendant may well have chosen not to seek

suppression of those statements had he understood that by exercising his constitutional rights to

do so he forfeited his Eighth Amendment right to present those same statements in mitigation.

Should this Court nevertheless consider trial counsel to have waived the Simmons objection, the

court’s decision was plain error, rendering his sentencing proceedings fundamentally unfair.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).

As noted above, the state had absolutely no forensic evidence linking the defendant to

these killings. In the instant case, without the statements attributed to the defendant, the state’s

case rested on the testimony of two witnesses, only one of whom could conclusively place the

defendant near the scene at any relevant time. The importance of these statements to the

prosecution would have been powerful evidence in mitigation had defense counsel been allowed

to present and argue it to the jury.

The state’s burden is increased by the facts that the jury rejected the theory of

premeditation and deliberation, finding defendant guilty on the basis of felony murder alone.

The jury also found the statutory mitigating circumstance that the defendant was under the
67

influence of a mental or emotional disturbance at the time the offenses were committed. The

jury had a duty to give that circumstance mitigating weight in its sentencing deliberations. State

v. Hedgepeth, 350 N.C. 776, 788, 517 S.E.2d 605, 613 (1999), cert. denied, ___ U.S. ___, 146

L.Ed.2d 223 (2000).

Evidence and argument relating to the defendant’s cooperation with authorities would

have powerfully enhanced these mitigating facts. The exclusion of this evidence rendered the

defendant’s capital sentencing proceeding fundamentally unfair, in violation of his rights to due

process of the law and the freedom from cruel and unusual punishment. Lockett, supra; Ford v.

Wainwright, 477 U.S. 399, 411, 91 L.Ed.2d 335, 347 (1986) (requiring “heightened standards of

reliability” in all capital proceedings); Odom, supra. The defendant must receive a new

sentencing hearing.

VIII. THE TRIAL COURT VIOLATED DEFENDANT'S STATUTORY
AND CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION
TO DISMISS FOR INSUFFICIENCY OF INDICTMENT AND HIS
MOTION TO STRIKE THE DEATH PENALTY.

Assignments of Error Nos. 1 & 2, Rp. 232.

Before trial, Defendant moved to dismiss the murder indictment and strike the death

penalty, citing violations of both the U.S. and the North Carolina constitutions. Rpp. 53-54, 69-

75. The trial court denied the motions. Rp. 126. The denial of these motions was constitutional

error, requiring new trial on all charges. Apprendi v. New Jersey, ___ U.S. ___, 147 L.Ed.2d 435

(2000); Jones v. United States, 526 U.S. 227, 143 L.Ed.2d 311 (1999); Skinner v. Oklahoma, 316

U.S. 535, 86 L.Ed. 1655 (1942).

Defendant’s first-degree murder conviction and death sentence must be vacated because

the indictment failed to charge all elements of first-degree murder or to allege matters in

aggravation. Thus, Defendant’s conviction and death sentence are not supported by the
68

indictment and violate the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and

Article I, §§ 19, 22, and 23 of the N.C. Constitution. Apprendi, ___ U.S. at ___, 147 L.Ed.2d at

446 (Fourteenth Amendment’s incorporation of Fifth and Sixth Amendments requires that all

elements of the offense and facts that increase the maximum penalty for a crime “must be

charged in the indictment, submitted to a jury and proven . . . beyond a reasonable doubt.”)

(quoting Jones, 526 U.S. at 243 n.6, 143 L.Ed.2d at 319, 326 n.6 (emphasis added)).

Defendant's murder indictment alleged that Defendant "unlawfully, willfully and

feloniously did of malice aforethought kill and murder Lena Hales." Rp. 6. The indictment

alleges only the elements of second degree murder. It omits allegations of either premeditation

and deliberation or felony murder, which are essential elements of first degree murder. State v.

Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978); N.C.G.S. §§ 14-17, 15-144.

The indictment violated Defendant’s rights to due process and equal protection of the law

under the Fourteenth Amendment to the United States Constitution. Apprendi, ___ U.S. at ___,

147 L.Ed.2d at 446; Skinner v. Oklahoma, 316 U.S. 535, 86 L.Ed. 1655 (1942). Moreover,

because under North Carolina law the trial court lacked jurisdiction to enter judgment on any

charge more serious than second degree murder, the error is unwaivable. State v. Wallace, 351

N.C. 481, 528 S.E.2d 326 (2000). Defendant’s conviction and death sentence on the charge of

first degree murder submitted to the jury are void. See State v. Sturdivant, 304 N.C. 293, 308,

283 S.E.2d 719, 729 (1981) (failure to allege all essential elements “may be corrected upon

appellate review even though no . . . objection . . . was made in the trial division”); State v. Hare,

243 N.C. 262, 264, 90 S.E.2d 550, 552 (1955) (same).

The right at issue in the instant case -- the right of a criminal defendant to be informed of

the elements of the charge against him, including matters that enhance sentencing -- is

enshrined not once, but twice in the due process clause of the Fourteenth Amendment. First,
69

"[n]o principle of procedural due process is more clearly established than [the requirement of]

notice of the specific charges" against a defendant. Cole v. Arkansas, 333 U.S. 196, 201, 92

L.Ed. 644, 647 (1948); Hodgson v. Vermont, 168 U.S. 262, 42 L.Ed. 461 (1897) (charging

instrument must satisfy defendant's right to notice of charges against him). Second, the due

process clause incorporates the "fundamental" Sixth Amendment right of every criminal

defendant to "be informed of the nature and cause of the accusation" against him. U.S. Const.

Amend. VI; Herring v. United States, 422 U.S. 853, 856-57 & n.7, 45 L.Ed.2d 593, 597 & n.7

(1975).

The short-form murder indictment filed against Defendant failed to provide the

constitutionally required notice of the elements of the charges against him or of matters in

aggravation. Rpp. 24-30. Moreover, Defendant's right to equal protection of the law was

violated by the state's excluding him, as a member of the class of persons accused of first degree

murder, from the notice protections of N.C.G.S. § 15A-924; Rpp. 24-26. This exclusion is

carved out by N.C.G.S. § 15-144, which allows first degree murder indictments to omit essential

elements of the offense. Lowe, 295 N.C. at 602, 247 S.E.2d at 882 (indictment for first degree

murder need allege neither premeditation and deliberation nor elements of felony murder).

This statutory scheme discriminates on its face. It creates two classes among those

accused of felonies in North Carolina and strips one class of the full due process protections

afforded the other. Such discrimination violates Defendant's rights to equal protection and due

process of the law under both the Fourteenth Amendment to the United States Constitution and

Article I, § 19 of the North Carolina Constitution. Romer v. Evans, 517 U.S. 620, 134 L.Ed.2d

855 (1996); Leandro v. State, 346 N.C. 336, 353, 488 S.E.2d 249, 258 (1997).

As argued above, the right of an accused to notice of all the elements of the charge

against him is a "fundamental" right under the Constitution. Cole, 333 U.S. at 201, 92 L.Ed. at
70

647; Herring, 422 U.S. at 856-57 & n.7, 45 L.Ed.2d at 597 & n.7. A statutory scheme that

discriminates on its face and impinges fundamental constitutional rights, such as the one

challenged here, is subject to strict scrutiny under equal protection analysis. Skinner, 316 U.S.

535, 86 L.Ed. 1655; Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994). Under this most

stringent standard of review, a statute is unconstitutional unless the state proves it necessary to

achieve a compelling state interest. Romer, 517 U.S. at 625, 134 L.Ed.2d at 861-62.

The state cannot carry its burden. The state cannot even meet the most deferential

standard of review by showing that the statutory scheme challenged here "bears a rational

relationship to some legitimate end." Romer, 517 U.S. at 632, 134 L.Ed.2d at 865. It is arbitrary

and capricious to eliminate fundamental constitutional protections for a small minority of those

accused of felonious conduct in North Carolina. It is even more irrational to eliminate those

protections for those accused of the most serious charge -- and therefore subject to the ultimate

penalty -- available under North Carolina law.

This irrationality is thrown into sharp light by this Court's decisions in State v. Gibson,

333 N.C. 29, 424 S.E.2d 95 (1992), State v. Whiteside, 325 N.C. 911, 383 S.E.2d 911 (1989),

and State v. Squire, 292 N.C. 494, 506, 234 S.E.2d 563, 570, cert. denied, 434 U.S. 998, 54

L.ed.2d 493 (1977). In these cases, this Court held that the defendants were not entitled to jury

instructions on lesser charges because the short-form murder indictment failed to allege the

elements of any lesser charges. This Court’s refusal in Gibson, Whiteside and Squire to expand

the scope of a trial court's jurisdiction beyond the terms of the short-form indictment cannot be

squared with the expansion of that jurisdiction allowed in Lowe and related cases. Thus, the

discrimination alleged here offends basic principles of both equal protection and due process.

M.L.B. v. S.L.J., 519 U.S. 102, 104, 136 L.Ed.2d 473, 490 (1996) (“[d]ue process and equal
71

protection principles converge” in assessing arbitrary and capricious state action); Church v.

State, 40 N.C. App. 429. 253 S.E.2d 473 (1979), aff'd, 299 N.C. 399, 263 S.E.2d 726 (1980).

As the United States Supreme Court noted in Romer, such an arbitrary classification lacks

any rational justification, and can bear no "necessary" relation to any interest, much less any

"compelling" interest that the state might hold. The Romer Court considered an amendment to

the Colorado state Constitution which, like the statutory scheme at issue here, simultaneously

created two distinct classes and stripped one class of legal protections afforded the other. The

Court held that such a "status-based enactment," which "nullifies specific legal protections for

[the] targeted class," creates the "inevitable inference that the disadvantage imposed is born of

animosity toward the class of persons affected" and fails the rational-basis test. Romer, 517 U.S.

at 635, 134 L.Ed.2d at 864, 867-68.

Neither a bill of particulars nor a Rule 24 hearing could have cured the indictment's fatal

flaw: by specifying only the elements of second degree murder and failing to allege matters in

aggravation, the indictment limited the trial court's jurisdiction to entering judgment on that

offense, and renders void the judgment and sentence against Defendant for first degree murder.

Whiteside, 325 N.C. 911, 383 S.E.2d 911; State v. Banks, 263 N.C. 784, 140 S.E.2d 318 (1965)

(bill of particulars cannot cure indictment's jurisdictional defect); Hare, 243 N.C. at 264, 90

S.E.2d at 552 ("An indictment will not support a conviction for an offense more serious than that

charged"; judgment vacated for lack of jurisdiction); State v. Neville, 108 N.C. App. 330, 423

S.E.2d 496 (1992) (same).

A state court judgment entered without jurisdiction violates both the Fourteenth

Amendment and the most fundamental "provision[s] of the supreme law" from which that

Amendment derives. Scott v. McNeal, 154 U.S. 34, 46, 38 L.Ed. 896, 901 (1893) ("No judgment

of a court is due process of law, if rendered without jurisdiction"); see also Burnham v. Superior
72

Court of California, 495 U.S. 604, 608, 109 L.Ed.2d 631, 638 (1990) ("The proposition that the

judgment of a court lacking jurisdiction is void traces back to the English Year Books").

The judgments, convictions, and sentences against Defendant are void for lack of

jurisdiction and were entered in violation of U.S. Const. Amends. V, VI and XIV, N.C. Const.

Art. I, §§ 19 and 23, and N.C.G.S. § 15A-924(a)(5). The error is structural; Defendant must

receive a new trial. Arizona v. Fulminante, 499 U.S. 279, 309, 113 L.Ed.2d 302, 331 (1991)

("structural defects in the constitution of the trial mechanism ... defy analysis by 'harmless error'

standards"); id., 499 U.S. at 294-295, 113 L.Ed.2d at 321-22 (collecting cases); Scott, 154 U.S. at

51, 38 L.Ed. at 903, (vacating judgment).

Defendant recognizes that these issues have been decided against him in State v. Braxton,

___ N.C. ___, 531 S.E.2d 428, 2000 LEXIS 524 (No. 2A98, 13 July 2000). The defendant

respectfully requests that the Court reconsider its opinion in Braxton, in order to (1) address the

equal protection issue raised here; (2) to clarify how the elements of first degree murder and the

aggravating factors necessary to enhance a life sentence to death are “encompassed within the

language of the short-form indictment”; and more specifically (3) to clarify how the conclusion

that “premeditation and deliberation need not be separately alleged” in North Carolina’s first-

degree murder indictment can be squared with the United States Supreme Court’s mandate to the

contrary.

In addition, Defendant respectfully draws the Court’s attention to the clear holding of

Apprendi that any fact that increases the maximum penalty for a crime beyond that which could

be imposed upon “the verdict alone” triggers the Jones rule. ___ U.S. at ___, 147 L.Ed.2d at

450, 455. North Carolina law does not allow the state to execute persons charged with first

degree murder on the basis of “the verdict alone.” “The verdict alone” allows imposition of life

imprisonment without parole and nothing more. G.S. §§ 14-17, 15A-2000. Consequently, the
73

factors in aggravation specified in G.S. § 15A-2000(e) must, like all of the elements of first

degree murder, be specified in the indictment. The murder conviction and death sentence in this

case are void for lack of jurisdiction. The defendant must receive a new trial.

IX. DEFENDANT’S STATUTORY AND CONSTITUTIONAL RIGHTS
WERE VIOLATED BY ADMISSION INTO EVIDENCE OF
ILLEGALLY-OBTAINED STATEMENTS.

A. THE TRIAL COURT VIOLATED DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY
DENYING HIS MOTION TO SUPPRESS FRUITS OF
ILLEGAL DETENTION.

Assignment of Error No. 3, Rp. 232.

The defendant recognizes that this decision has been decided against him in State v.

Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1057, 139 L.Ed.2d 654

(1998) (Cummings I). The defendant respectfully requests that this Court reconsider its ruling in

that case and hereby preserves the issue in the event of further review. See Engle v. Isaac, 456

U.S. 107, 71 L.Ed.2d 783 (1982).

B. THE TRIAL COURT VIOLATED DEFENDANT’S
STATUTORY AND CONSTITUTIONAL RIGHTS BY
DENYING HIS MOTIONS TO SUPPRESS INVOLUNTARY
STATEMENTS AND STATEMENTS MADE DURING DELAYS
IN PRESENTING DEFENDANT TO MAGISTRATE AND IN
PROVIDING FOR COMMUNICATION WITH COUNSEL.

Assignment of Error No. 6, Rp. 233.

The defendant recognizes that this decision has been decided against him in State v.

Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1057, 139 L.Ed.2d 654

(1998) (Cummings I). The defendant respectfully requests that this Court reconsider its ruling in

that case and hereby preserves the issue in the event of further review. See Engle v. Isaac, 456

U.S. 107, 71 L.Ed.2d 783 (1982).
74

X. THE TRIAL COURT VIOLATED DEFENDANT'S STATUTORY
AND CONSTITUTIONAL RIGHTS BY EXCUSING FOURTEEN
PROSPECTIVE JURORS FOR CAUSE ON THE GROUNDS THAT
THEY WOULD BE UNABLE TO RETURN A SENTENCE OF
DEATH.

Assignment of Error No. 9, Rpp. 233-234.

The trial court committed constitutional error by excusing fourteen prospective jurors on

the basis of their answers to death-qualifying questions posed during voir dire. Sigmon Vol. II

Tpp. 427, 476; Sigmon Vol. III Tpp. 523, 617, 634; York Vol. I Tpp. 402, 406, 414, 425, 446,

467; York Vol. II Tpp. 95, 211, 225. The excusal of these jurors violated Defendant's

constitutional rights to a fair and impartial jury, to a reliable sentencing hearing and to due

process of the law as guaranteed by the Sixth, Eighth and Fourteenth Amendments of the United

States Constitution and Article I, §§ 19, 23, 24 and 27 of the North Carolina Constitution.

Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d 776 (1968); see also N.C. Gen. Stat. § 15A-

1212(8) (1997) (allowing for-cause challenge to jurors who cannot "render a verdict ... in

accordance with the law of North Carolina"). Improperly excluding a prospective juror is

reversible error per se. Gray v. Mississippi, 481 U.S. 648, 95 L.Ed.2d 622 (1987). Accordingly,

Defendant must be awarded a new trial,13 or in the alternative, a new sentencing hearing.

The appropriate focus of a death-qualifying inquiry is whether jurors' "beliefs about

capital punishment would lead them to ignore the law or violate their oaths." Adams, 448 U.S. at

50, 65 L.Ed.2d at 593. North Carolina's capital sentencing law imposes two duties upon jurors.

First, they "must consider any aggravating ... or mitigating circumstance or circumstances"

13
Defendant acknowledges that this Court has held that error under
Witherspoon and Wainwright v. Witt, 469 U.S. 412, 83 L.Ed.2d 841 (1985)
pertains only to sentencing. State v. Robinson, 327 N.C. 346, 395 S.E.2d 402
(1990). Defendant respectfully requests that the Court reconsider this
decision in light of the Supreme Court's clear directive that a new trial is
the sole remedy for the violation of a defendant's Sixth Amendment right to a
fair trial.
75

provided under the statute "which may be supported by the evidence." N.C. Gen. Stat. § 15A-

2000(b) (1997). Second,

[a]fter hearing the evidence, argument of counsel, and instructions of the court, the
jury shall deliberate and render a sentence recommendation to the court, based upon the
following matters:

(1) Whether any sufficient aggravating circumstance or circumstances as enumerated
in subsection (e) exist;

(2) Whether any sufficient mitigating circumstance or circumstances as enumerated
in subsection (f), which outweigh the aggravating circumstance or circumstances found,
exist; and

(3) Based on these considerations, whether the defendant should be sentenced to
death or to imprisonment in the State's prison for life.

Id. Although the aggravating factors are expressly limited by statute, N.C. Gen. Stat. § 15A-

2000(e), the jury is free to consider a broad range of mitigating factors, including those specified

by statute, N.C. Gen. Stat. § 15A-2000(f), nonstatutory mitigating factors submitted by the

defense, and "[a]ny other circumstance arising from the evidence which the jury deems to have

mitigating value." N.C. Gen. Stat. § 15A-2000(f)(9).

Thus the North Carolina capital sentencing statute, like those at issue in Adams, Witt, and

other post-Furman cases,14 establishes a deliberative process in which the jury exercises guided

discretion in determining whether or not the death penalty is warranted in a particular case. In

North Carolina, as in other guided-discretion states, the deliberative "process is not an exact

science, and the jurors ... unavoidably exercise a range of judgment and discretion while

remaining true to their instructions and their oaths." Adams, 448 U.S. at 46, 65 L.Ed.2d at 590;

see also, e.g., Lockhart v. McCree, 476 U.S. 162, 183, 90 L.Ed.2d 137, 154 (1986) (noting "the

discretionary nature of the [capital sentencing] jury's task"). The Constitution therefore forbids

14
Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346 (1972) held
unconstitutional capital sentencing statutes which grant juries unfettered
discretion in rendering their sentencing recommendations.
76

the "exclusion of jurors from the penalty phase ... who frankly concede that the prospects of the

death penalty may affect what their honest judgment of the facts will be or what they deem to be

a reasonable doubt." Adams, 448 U.S. at 50, 65 L.Ed.2d at 593.

The Constitution lays a heavy evidentiary burden on the state's pursuit of a death-

qualified jury because, as the Supreme Court has recognized, it is "apparent that a ... juror's

views about the death penalty might influence the manner in which he performs his role but

without exceeding the 'guided jury discretion'" permitted by state law. Adams, 448 U.S. at 46-47,

65 L.Ed.2d at 590 (citation omitted). To protect those "assessments and judgments ... inherent"

in and essential to jury deliberations, the Constitution forbids trial courts from requiring -- as a

precondition to the exercise of potential jurors' right to serve in a capital case -- an oath that their

deliberations will not be "affected by the prospect of the death penalty or by their views about

such a penalty." Adams, 448 U.S. at 50, 65 L.Ed.2d at 593. In North Carolina, each juror must

"swear or affirm that he will truthfully and without prejudice or partiality try all issues in

criminal or civil actions that come before him and render true verdicts according to the

evidence." N.C. Gen. Stat. § 9-14 (1999). Adams clearly bars trial courts from striking jurors for

cause based on an inability to state, swear, or affirm that their deliberations will be unaffected by

their ambivalence about or even opposition to the death penalty. Under the Sixth and Fourteenth

Amendments, a sentencing body composed solely of jurors willing to engage in such self-

censorship is not impartial and violates due process; a death sentence returned by such a jury

cannot stand.

The improper excusal of these qualified jurors for cause violated Defendant's rights to an

impartial jury and a reliable sentencing hearing and to the due process of the law guaranteed by

the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§

19 and 24 of the North Carolina Constitution. Such constitutional violations constitute reversible
77

error per se. Gray v. Mississippi, supra; Davis v. Georgia, 429 U.S. 122, 50 L.Ed.2d 339 (1976)

(per curiam). "We have recognized that some constitutional rights are so basic to a fair trial that

their infraction can never be treated as harmless error. ... The right to an impartial adjudicator, be

it judge or jury, is such a right." Gray, 481 U.S. at 668, 95 L.Ed.2d at 639 (citations omitted).

Defendant must receive a new sentencing hearing.

The defendant recognizes that this issue has been decided against him in State v. Nobles,

350 N.C. 483, 517, 515 S.E.2d 85, 905 (1999). The defendant respectfully requests that this

Court reconsider its ruling in that case, and hereby preserves the issue in the event of further

review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).

Assignment of Error No. 40, Rp. 242

The Trial Court committed plain error by refusing to instruct jurors that they “must”

rather than “may” consider mitigating circumstances when deciding Issues 3 and 4 during their

jury deliberations. The word “may” erroneously allowed jurors to ignore the mitigation

established at Issue 2 in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution and N.C. Const. art I, §§ 19, 23, and 27. Accordingly, the Trial

Court’s instructions erroneously allowed jurors to disregard relevant mitigating evidence. This

plain error rendered the defendant’s sentencing proceeding fundamentally unfair. State v. Odom,

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Recognizing that this Court has rejected this

argument in State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied, 130 L.Ed.2d 162 (1994),

the defendant respectfully requests that this Court reconsider its ruling in that case and order a
78

new sentencing hearing, and hereby preserves the issue in the event of further review. See Engle

v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).

XII. THE TRIAL COURT COMMITTED REVERSIBLE
CONSTITUTIONAL ERROR BY PLACING THE BURDEN OF
PROOF ON DEFENDANT TO SATISFY THE JURY WITH
RESPECT TO MITIGATING CIRCUMSTANCES AND REFUSING
TO INSTRUCT JURORS THAT PROOF BY THE
PREPONDERANCE OF THE EVIDENCE IS PROOF WHICH
INDICATES THAT IT IS MORE LIKELY THAN NOT THAT A
MITIGATING CIRCUMSTANCE EXISTS.

Assignment of Error No. 41, Rp. 242

The Trial Court committed plain constitutional error by placing the burden of proof on

the defendant to satisfy the jury with respect to mitigating circumstances and by failing to

instruct jurors that proof by the preponderance of the evidence is proof which indicates that it is

more likely than not that a mitigating circumstance exists. The term “satisfy” or “satisfaction”

was impermissibly vague and permitted jurors to apply a burden of proof higher than the

preponderance standard when evaluating the mitigation evidence presented by the defense in

violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and N.C. Const. art I, §§ 19, 23, and 27. The Trial Court instructed jurors that

“mitigating circumstance[s] must be established by a preponderance of the evidence. That is, the

evidence taken as a whole must satisfy . . . you that any mitigating circumstance exists. If the

evidence satisfies . . .” (Rp. 187, York Vol. V Tp. 407) Accordingly, the Trial Court’s

instructions erroneously allowed jurors to apply a burden of proof higher than the preponderance

standard when they were evaluating mitigating evidence. This plain error rendered the

defendant’s sentencing proceeding fundamentally unfair. State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983). Recognizing that this Court has rejected this argument in State v.

Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 131 L.Ed.2d 292 (1995), the defendant

respectfully asks this Court to reconsider and order a new sentencing hearing, and hereby
79

preserves the issue in the event of further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d

783 (1982).

XIII. THE TRIAL COURT COMMITTED REVERSIBLE
CONSTITUTIONAL ERROR BY ERRONEOUSLY INSTRUCTING
JURORS THEY COULD FIND THAT A MITIGATING
CIRCUMSTANCE EXISTS AND SIMULTANEOUSLY FIND THE
MITIGATING CIRCUMSTANCE HAS NO MITIGATING VALUE.

Assignment of Error No. 42, Rpp. 242-43.

The Trial Court committed plain error by erroneously instructing jurors they could find

that a mitigating circumstance exists and simultaneously find the mitigating circumstance has no

mitigating value. If jurors were to find that a mitigating circumstance existed, it would have

mitigating value as a matter of law. N.C.P.I. 150.10 erroneously permits jurors to ignore

mitigating circumstances established by the evidence in violation of the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution and Article I, §§ 19, 23, 24 and 27 of

the North Carolina Constitution. The Trial Court instructed jurors pursuant to the pattern. (Rpp.

192-201, York Vol. V Tpp. 412-21) These instructions erroneously allowed jurors to ignore

mitigating circumstances and denied defendant the constitutionally required individual

consideration of his background and character, and the crime. See Penry v. Lynaugh, 492 U.S.

302, 319, 106 L.Ed.2d 256, 278 (1992); Eddings v. Oklahoma, 455 U.S. 104, 71 L.Ed.2d 1

(1982); Lockett v. Ohio, 438 U.S. 586, 605, 57 L.Ed.2d 973 (1978). Absent these erroneous

instructions, jurors would have found significantly more mitigating circumstances and returned a

sentence of life imprisonment without parole instead of death. This plain error rendered the

defendant’s sentencing proceeding fundamentally unfair. State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983). Recognizing that this Court has previously rejected this argument in

State v. Fullwood, 323 N.C. 371, 395-97, 373 S.E.2d 518, 533 (1988), sentence vacated on other

grounds, 494 U.S. 1022, 108 L.Ed.2d 602 (1990), the defendant respectfully asks this Court to
80

reconsider and order a new sentencing hearing, and hereby preserves the issue in the event of

further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).

XIV. THE TRIAL COURT COMMITTED PLAIN ERROR BY
ERRONEOUSLY INSTRUCTING THE JURY THAT UNANIMITY
IS REQUIRED TO ANSWER “NO” TO ISSUES I, III, & IV ON
THE ISSUES AND RECOMMENDATIONS SENTENCING FORM.

Assignment of Error No. 43, Rp. 243.

Recognizing that this Court has previously rejected this argument in State v. Thomas, 350

N.C. 315, 514 S.E.2d 486 (1999), the defendant respectfully asks this Court to reconsider and

order a new sentencing hearing, and hereby preserves the issue in the event of further review.

See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).

XV. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING
TO INSTRUCT THE JURY THAT UNANIMITY IS REQUIRED
TO ANSWER “YES” TO ISSUE IV ON THE ISSUES AND
RECOMMENDATIONS SENTENCING FORM.

Assignment of Error No. 44, Rp. 243.

The defendant recognizes that this decision has been decided against him in State v.

Rowsey, 343 N.C. 603, 472 S.E.2d 903 (1996). The defendant respectfully requests that this

Court reconsider its ruling in that case and hereby preserves the issue in the event of further

review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).

XVI. THE TRIAL COURT COMMITTED REVERSIBLE
CONSTITUTIONAL ERROR BY INSTRUCTING THE JURY ON
THE (E)(9) AGGRAVATING FACTOR.

Assignment of Error No. 32, Rp. 240.

The Trial Court committed reversible constitutional error by instructing the jury on the

especially heinous, atrocious, or cruel (e)(9) aggravating factor pursuant to the pattern

instruction. The (e)(9) instruction is unconstitutionally vague as interpreted by our appellate

courts and as applied in this case; it failed to narrow the class of death eligible defendants; and
81

the pattern jury instructions failed to adequately limit the application of this facially vague factor

in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution,

and Article I, §§ 18, 19 and 27 of the North Carolina Constitution. Maynard v. Cartwright, 486

U.S. 356, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 64 L.E.2d 398 (1980);.

Rpp. 183-84, York Vol. V Tpp. 403-404) The jury found this factor in sentencing. (Rp. 213)

Accordingly, the Trial Court’s submission of this aggravating factor along with its inadequate

jury instructions erroneously allowed jurors to find the (e)(9) aggravator in violation of the

defendant’s constitutional rights. Recognizing that this Court has rejected this argument in State

v. Boyd, 311 N.C. 408, 319 S.E.2d 189 (1984), cert. denied, 417 U.S. 1030, 85 L.Ed.2d 342

(1985), the defendant respectfully asks this Court to reconsider and order a new sentencing

hearing, and hereby preserves the issue in the event of further review. See Engle v. Isaac, 456

U.S. 107, 71 L.Ed.2d 783 (1982).

XVII. THE TRIAL COURT COMMITTED REVERSIBLE
CONSTITUTIONAL ERROR BY INSTRUCTING THE JURY ON
THE (E)(9) AGGRAVATING FACTOR.

Assignment of Error No. 33, Rp. 240.

The trial court erred in overruling the defendant’s objection to submission of the

aggravating factor specified in N.C.G.S. § 15A-2000(e)(11). Rp. 171-72, York Vol. V Tpp. 122-

24, 289-90. This aggravating factor requires the jury to consider whether the killing “was part of

a course of conduct in which the victim engaged and which included the commission by the

defendant of other crimes of violence against another person or persons.” Because the state

cannot prove the erroneous submission of this aggravating factor harmless beyond a reasonable

doubt, the defendant must receive a new sentencing hearing. State v. Cherry, 298 N.C. 86, 257

S.E.2d 551 (1979). In the alternative, should this Court find that trial counsel waived the

constitutional objection at issue here, the defendant contends that the ruling was plain error.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (reciting plain error standard).
82

At the time of this trial, the defendant had already been convicted and sentenced to death

on the basis of the killing of Burns Babson. State v. Cummings, 346 N.C. 291, 488 S.E.2d 550

(1997), cert. denied, 522 U.S. 1057, 139 L.Ed.2d 654 (1998) (Cummings I). Evidence of Ms.

Hales’ death was submitted to support the (e)(11) aggravator in that case. In the instant case,

evidence of Mr. Babson’s death was submitted to support the (e)(11) aggravator. In both cases,

the jury recommended death sentences based in part on their findings of that identical

aggravating factor.

The defendant argued against submission of the (e)(11) aggravator and the evidence of

the Babson killing to support it on the basis that it would diminish the jury’s sense of

responsibility in making the capital sentencing decision. York Vol. V Tpp. 122-24, 289-90.

Thus, counsel’s argument was grounded in the due process concerns as well as the Eighth

Amendment’s requirement that the death penalty must be narrowly applied and only subsequent

to sentencing hearings exhibiting a heightened standard of reliability. E.g., Caldwell v.

Mississippi, 472 U.S. 320, 86 L.Ed.2d 231 (1985); Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d

346 (1972).

The same constitutional concerns animate Cherry, 298 N.C. at 112-13, 257 S.E.2d at

567-68 (addressing concern that capital sentencing statute rendered “incongruous” result and

impermissibly broadened applicability of death sentence), and State v. Quesinberry, 319 N.C.

228, 236, 354 S.E.2d 446, 451 (1987) (addressing claim that erroneous submission of

aggravating factor rendered death sentence “arbitrary and capricious). Because “the same

evidence underlies proof of both” findings of the (e)(11) factor in this case and Cummings I,

Quesinberry, 319 N.C. at 239, 354 S.E.2d at 452, the defendant was punished twice for the same

conduct in violation of his rights to due process, a fair and reliable sentencing hearing, and the

freedoms from double jeopardy and cruel and unusual punishment. Because these constitutional
83

errors rendered these capital sentencing proceedings fundamentally unfair, the defendant must

receive a new sentencing hearing. U.S. Const. amends. V, VIII, XIV; N.C. Const. art. I, §§ 19,

27; Cherry, supra; Quesinberry, supra; Odom, supra.

Recognizing that this Court has rejected this argument in State v. Pinch, 306 N.C. 1, 292

S.E.2d 203, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622 (1982), overruled on other grounds by

State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988) and by State v. Robinson, 336 N.C. 78,

443 S.E.2d 306 (1994), the defendant respectfully asks this Court to reconsider and order a new

sentencing hearing, and hereby preserves the issue in the event of further review. See Engle v.

Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).

XVIII. THE TRIAL COURT COMMITTED REVERSIBLE
CONSTITUTIONAL ERROR BY SENTENCING DEFENDANT TO
DEATH BECAUSE THE DEATH PENALTY IS INHERENTLY
CRUEL AND UNUSUAL; THE NORTH CAROLINA CAPITAL
SENTENCING SCHEME IS UNCONSTITUTIONALLY VAGUE
AND OVERBROAD; AND THE DEATH SENTENCE IN THIS
CASE WAS NOT SUPPORTED BY THE EVIDENCE, WAS
DISPROPORTIONATE, AND WAS IMPOSED UNDER THE
INFLUENCE OF PASSION, PREJUDICE, AND OTHER
ARBITRARY FACTORS.

Assignment of Error No. 45, Rpp. 243-44.

The Trial Court committed reversible constitutional error by sentencing the defendant to

death because the death penalty is inherently cruel and unusual and the North Carolina capital

sentencing scheme, G.S. § 15A-2000, is vague and overbroad. G.S. § 15A-2000 also permits

juries to make excessively subjective sentencing determinations. Moreover, our capital

sentencing scheme is applied arbitrarily and pursuant to a pattern of discrimination on the basis

of race and sex of defendants and victims, and on the basis of defendants’ poverty. The

defendant raised all these issues in a pretrial Motion to Strike the Death Penalty, which the Trial

Court denied. (Rpp. 69-75; Palmer Vol. I Tp. 32 line 15) Finally, in this case, the death penalty

is disproportionate and was imposed under the arbitrary influence of passion and prejudice.
84

Recognizing that this Court has previously rejected this argument in State v. Keel, 337 N.C. 469,

447 S.E.2d 748 (1994), cert. denied, 131 L.Ed.2d 147 (1995), and State v. Green, 329 N.C. 686,

406 S.E.2d 852 (1991), the defendant asks this Court to reconsider and vacate his death sentence,

or in the alternative, order a new sentencing hearing, and hereby preserves these issues in the

event of further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).

CONCLUSION

For all the foregoing reasons, defendant respectfully contends that his convictions and

sentences must be vacated, and he must receive a new trial.

Respectfully submitted this the 5th day of September, 2000.

___________________________________
Janet Moore
Assistant Appellate Defender
c/o Office of the Public Defender
Buncombe County Courthouse
Asheville, North Carolina 28801-3580
828/232-2596

Malcolm Ray Hunter, Jr.
Appellate Defender
Office of the Appellate Defender
123 West Main Street, Suite 600
Durham, North Carolina 27701
(919) 560-3334

ATTORNEYS FOR DEFENDANT
85

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed with the
Clerk of the Supreme Court of North Carolina by mail pursuant to Rule 26 by sending it first-
class mail, postage prepaid to the Clerk of the Supreme Court of North Carolina, Post Office Box
2170, Raleigh, North Carolina 27602, by placing it in a depository for that purpose.

I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s
New Brief has been duly served upon William N. Farrell, Jr., Senior Deputy Attorney General,
North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by
first-class mail, postage prepaid.

This the 5th day of September, 2000.

________________________________

Janet Moore
Assistant Appellate Defender
86

No. 510A99 SIXTEEN-B DISTRICT

SUPREME COURT OF NORTH CAROLINA

****************************************************

STATE OF NORTH CAROLINA )
)
v. ) From Robeson
)
DANIEL CUMMINGS, JR. )

****************************************************

APPENDIX TO DEFENDANT-APPELLANT’S BRIEF

****************************************************

N.C. Gen. Stat. § 9-3 ...........................................................................................................1

York Vol. I Tp. 48................................................................................................................2

York Vol. I Tp. 51................................................................................................................3

York Vol. I Tp. 53................................................................................................................4

Digest of Jury Selection .......................................................................................................5

York Vol. I Tp. 52................................................................................................................8

N.C. Gen. Stat. § 15A-1214(a) ............................................................................................9

York Vol. I Tpp. 61-62, 66 ................................................................................................10

N.C. Gen. Stat. § 15A-1211(c) ..........................................................................................13

Palmer Vol. I Tpp. 113-118 ...............................................................................................14

York Vol. III Tpp. 278-79, 287-88 ....................................................................................20

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