Goss_ Christopher

Document Sample
Goss_ Christopher Powered By Docstoc
					No.    316A05                          TWENTY-THIRD DISTRICT

                SUPREME COURT OF NORTH CAROLINA

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

STATE OF NORTH CAROLINA           )
                                  )
                 Plaintiff        )
                                  )
       V.                         )    From Ashe
                                  )    Case No. 03 CrS 51674
CHRISTOPHER EDWARD GOSS           )
                                  )
                 Defendant        )

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

                   DEFENDANT-APPELLANT’S BRIEF

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

                         QUESTIONS PRESENTED

I.     WHETHER THE TRIAL COURT ORDER BARRING MR. GOSS FROM
       CONSULTING WITH HIS ATTORNEY DURING THE MID-TRIAL, DAY
       LONG, EXAMINATION OF HIM BY THE STATE’S MENTAL HEALTH
       EXPERT WAS A VIOLATION OF HIS STATE AND FEDERAL
       CONSTITUTIONAL RIGHT TO COUNSEL WHICH REQUIRES THAT HIS
       CONVICTION BE REVERSED?


II.    WHETHER THE TRIAL COURT ERRED BY ALLOWING THE STATE TO
       REOPEN THE VOIR DIRE OF TWO JURORS FOUND ACCEPTABLE BY
       BOTH THE STATE AND DEFENSE BASED ON A FINDING THAT THE
       JURORS HAD FAILED TO CORRECTLY ANSWER QUESTIONS DURING
       THE PROSEUCTOR’S VOIR DIRE WHEN THE RECORD SHOWS THAT
       THE JURORS DID NOT GIVE INCORRECT ANSWERS TO THE
       PROSECUTOR’S QUESTIONS?


III.   WHETHER THE CONCESSION IN CLOSING ARGUMENT THAT MR.
       GOSS’ CONFESSION PROVED HE WAS GUILTY OF FIRST DEGREE
       MURDER, AFTER MR. GOSS CONSENTED ONLY TO A CONCESSION OF
       GUILT OF SECOND DEGREE MURDER, WAS A PER SE VIOLATION OF
                                    2


        HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE
        ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW?

IV.     WHETHER THE TRIAL COURT ERRED BY FAILING TO INTERVENE EX
        MERO MOTU TO BAR THE PROSECUTOR’S ARGUMENT IN CLOSING
        THAT MR. GOSS’ ALLEGED EFFORT TO ELIMIATE ROB WILLIS AS A
        WITNESS PROVED THAT HE KILLED DEBBIE VELER TO ELIMINATE
        HER AS A WITNESS?

V.      WHETHER INSTRUCTING THE JURY THAT THEY HAD TO
        UNANIMOUSLY FIND THAT THE AGGRAVATING CIRCUMSTANCES
        WERE NOT SUFFICIENTLY SUBSTANTIAL WHEN CONSIDERED WITH
        THE MITIGATING CIRCUMSTANCES TO CALL FOR THE IMPOSITION OF
        THE DEATH PENALTY BEFORE THEY COULD ANSWER ISSUE No. 4 NO
        AND SENTENCE MR. GOSS TO LIFE IMPRISONMENT WITHOUT PAROLE
        WAS ERROR OR PLAIN ERROR WHICH DEPRIVED HIM OF HIS STATE
        AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW
        AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT?

VI.     WHETHER THE TRIAL COURT'S INSTRUCTION TO THE JURY IN THE
        PENALTY PHASE THAT IT HAD THE "DUTY" TO IMPOSE THE DEATH
        PENALTY IF IT FOUND THE MITIGATING CIRCUMSTANCES FAILED TO
        OUTWEIGH THE AGGRAVATING CIRCUMSTANCES AND THAT THE
        AGGRAVATING CIRCUMSTANCES WERE SUFFICIENTLY SUBSTANTIAL
        TO CALL FOR THE DEATH PENALTY WHEN CONSIDERED WITH THE
        MITIGATING CIRCUMSTANCES DEPRIVED MR. GOSS OF HIS STATE
        AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW
        AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT?

VII.    WHETHER THE DEFINITION OF MITIGATING CIRCUMSTANCES IN THE
        TRIAL COURT'S CHARGE TO THE JURY WAS ERROR OR PLAIN ERROR
        WHICH DEPRIVED MR. GOSS OF HIS STATE AND FEDERAL
        CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND TO BE FREE
        FROM CRUEL AND UNUSUAL PUNISHMENT?

VIII.   WHETHER THE STANDARDS SET BY THE SUPREME COURT OF NORTH
        CAROLINA FOR ITS PROPORTIONALITY REVIEW MANDATED BY
        N.C.G.S. § 15A-2000(D)(2) ARE VAGUE AND ARBITRARY TO THE EXTENT
        THAT THEY DEPRIVE MR. GOSS OF HIS CONSTITUTIONAL RIGHTS TO
        NOTICE, EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW
        AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT?

IX.     WHETHER THE DEATH SENTENCE WAS IMPOSED UNDER THE
        INFLUENCE OF PASSION, PREJUDICE AND OTHER ARBITRARY
        FACTORS AND IS EXCESSIVE AND DISPROPORTIONATE TO THE
        PENALTY IMPOSED IN OTHER SIMILAR CASES?
                                            3



                            STATEMENT OF THE CASE

       On 15 December 2003, the Ashe County Grand Jury returned an indictment

charging that, on 22 September 2003, Defendant-Appellant Christopher Goss murdered

Debora Sturgill Veler. (Rp. 66) The charge was prosecuted capitally.

       The charge came on for trial at the 18 January 2005 Criminal Term of the Ashe

County Superior Court, the Honorable Richard L. Doughton, Superior Court Judge,

presiding. (Rpp. 1, 89-90) On 2 February 2005, the jury returned a verdict finding Mr.

Goss guilty of first degree murder, both on the basis of premeditation and deliberation

and on the basis for felony murder. (Rp. 120) On 8 February 2005, the jury returned a

verdict recommending that Mr. Goss be sentenced to death. (Rpp. 158-161)

       In accord with the jury’s verdict, Mr. Goss was sentenced to death. (Rpp. 162-

166) Mr. Goss gave notice of appeal to this Court. (Rpp. 167-168)

                           STATEMENT OF THE FACTS

I.     EVIDENCE AND VERDICT IN GUILT-INNOCENCE PHASE

       About 9:15 a.m. on 22 September 2003, an Ashe County Deputy Sheriff entered

the residence of Debbie Veler and found her dead on her living room floor. Veler

suffered multiple abrasions and contusions on her head, neck, shoulders arms and legs

and multiple stabbing and cutting wounds to her face, neck, back, arms and legs. At the

time she was found, two knives were lodged in her body, one in her back and one in her

neck. Her death was caused by the loss of blood from the knife wounds. (1/21/05Tpp.

192-194; 1/25/05Tpp. 150-156))

       There was no dispute at trial that Mr. Goss inflicted the injuries that were the

cause of Veler’s death. He admitted that fact to the investigating officers. He authorized
                                            4


his attorneys to admit that fact in opening statements. The issue in the guilt-innocence

phase of the trial was what degree of homicide had been committed.

       Debbie Veler lived at 238 Benfield Street, Jefferson, North Carolina.           Her

grandson, K.C., was almost four years old. K.C.’s parents, Kenneth and Denise Courtner,

were divorced. Kenneth dropped K.C. off at Debbie Veler’s house about noon on

Sunday, 21 June 2003. Denise Courtner, who was working a double shift that day, made

arrangements to meet Debbie Veler in a church parking lot on Highway 221 to pick up

K.C. at 6:30 the following morning. That day, Debbie Veler took K.C. to the Tweetsie

Railroad. The records of the facility showed that they entered about 2:15 p.m. The

facility did not have records showing what time they left. The facility closed at 6:00 p.m.

(1/21/05Tpp. 165-167; 1/25/05Tpp. 143-145; 2/1/05Tpp. 114-116)

       Debbie Veler did not show up at the parking lot Monday morning. Nancy Kerley,

the mother of Kenneth Courtner, stopped there on her way to work and learned that

Debbie Veler was late. Later that morning, after checking with Denise by telephone, she

decided to go to Veler’s house to check on her. Denise called the police and asked them

to check on her mother. Deputy Rob Powers was dispatched to the house. Kerley was

knocking on the door when he arrived about 9:15 a.m. Rita Wagoner, who lived across

the street, heard the dispatch of an officer to Veler’s house in her police scanner and

came over to the house. Eventually, K.C. appeared in the glass at the front door and,

after several requests by Kerley, he opened the door. K.C. stayed with Kerley and

Wagoner while Deputy Powers entered the house and found Veler, dead, on the living

room floor. (1/21/05Tpp. 173-181, 185-188, 192-194; 2/1/05Tpp. 116-117)
                                           5


       Mr. Goss was living at 209 Benfield Drive, the home of his parents, Jim and Anna

Goss. He was married and had a three year old child. He was separated from his wife,

who lived with his child in Atlanta, Georgia. He moved back to his parent’s house in

March 2003. He was questioned by officers doing a canvass of the neighborhood. He

said that he had waved at Debbie Veler, but had never talked to her. He did know her

daughter, Denise. They had dated and partied together a couple of times about ten years

ago when they both worked at the same place. He said that he was at home the day and

night of 21-22 September 2003. (1/24/05Tpp. 95-97, 125-126, 190-191; 1/25/05Tpp. 35-

41)

       Jefferson Police Chief David Neaves was booking Mr. Goss in the jail on

unrelated charges when he noticed a inch and a quarter, healing cut on his upper forearm.

Neaves contacted resident SBI agent Steve Wilson. They questioned Mr. Goss at the jail.

Mr. Goss repeated what he had said previously about having seen Debbie Veler in

passing, but never having talked to her and about dating Denise a few times when they

were both working at Hardee’s. He said that he had left the house in 21 September in the

late afternoon to go to the 7-11 to get some beer. He did not mention that when

questioned earlier because his father, who did not approve of him drinking in the house,

was in the room. He said he was home the rest of that day and night. He said that he got

the cut on his arm when he broke a glass window in his garage. (1/24/05Tpp. 102-123;

1/25/05Tpp. 47-54)

       In the early morning hours of 24 October 2003, Chief Neaves and Agent Wilson

took Mr. Goss to the hospital to collect blood and hair samples pursuant to a search

warrant. When they got back to the jail, Mr. Goss said he wanted to talk to them. They
                                           6


took him to a room at the Jefferson Police Department to interview him. After being

advised of and waiving his Miranda rights, he said that he had killed Debbie Veler. He

described the events that occurred. Then they had him go over the events in greater

detail, Agent Wilson writing down his answers as Mr. Goss talked. The interview started

at 1:40 a.m. and was completed at 6:20 a.m. His statement was largely consistent with

the physical evidence found at Debbie Veler’s house. (1/25/05Tpp. 54-61, 87-89) Agent

Wilson read the lengthy statement, written by him and signed by Mr. Goss, to the jury.

(1/25/05Tpp. 61-81) Mr. Goss gave the following account of the events:

       He walked to the 7-11 in West Jefferson in the afternoon of 21 September to buy

beer. When he was on his way back, Debbie Veler stopped her Ford Explorer and

offered him a ride. Her grandson was in the car with her. They made small talk during

the drive. She asked him if he knew Denise. He said that he did. When they got to her

house, she asked him if he wanted to come over and talk later that night. He said yes. He

got home about 5:00 p.m. He stayed in his room, drinking eight or nine beers, until about

11:00, when he went over to Debbie Veler’s house. (1/25/05Tpp. 61-64)

       Debbie Veler let him in. They sat on the sofa talking. She asked him what he had

been doing. He told her that he had gotten married and showed her a photo of his child.

She talked about Denise’s son, who was sleeping in bed. She asked him if he was the

father of Denise’s daughter. He said no. She asked him if he remembered partying with

Denise years ago and going to Twin Rivers with her and friends. He said yes. She got

sort of mad and upset and said that Denise had told her that he had raped Denise. He told

her no, picked up his duffle bag, stood up and said he should leave. She said he was not
                                            7


going anywhere and poked her finger in his forehead. He dropped the bag and hit her in

the nose with the palm of his hand. (1/25/05Tpp. 64-65)

         Debbie Veler said she was calling the police, and ran to the bedroom to get the

phone. He threw her down on the bed and hit her a few times. They were wrestling. She

said she couldn’t breathe. He let her up. She tried to run. He grabbed her and they

scuffled some more. He told her to calm down and go back to the living room. She ran

down the hall to the living room. He grabbed her and threw her down on the carpet. He

asked if she was going to call the police. She said yes. He said he wouldn’t let her go

until she calmed down. She cursed him and said he was going to pay for this. He started

hitting her on the back of the head and face until she stopped moving. He smoked a

cigarette and tried to think about what to do, because he was out of control. (1/25/05Tpp.

65-67)

         He left and went back to his house. He got some clothes, a hammer and some

duct tape and ran back to Debbie Veler’s house. He did not intend to kill her. He was

going to make it look like a robbery or breaking and entering and hoped that she would

not remember who he was. He started to ransack the house, dumping items from drawers

and closets onto the floor. Debbie Veler raised her head and noticed that he was still

there. He got on top of her and told her to calm down and not call the police. He got the

duct tape from his bag and bound her hands and feet and began hitting her again until she

stopped moving. (1/25/05Tpp. 67-69, 79-80)

         He went back to ransacking the house. She woke up and started screaming. He

went to her and told her to be quiet, to remember that she didn’t remember anything or

who he was. She cursed him and said he was going to jail. He went to the kitchen, got a
                                            8


knife, came back and started stabbing her. He got up and said, “What the hell am I

doing?” He went back to the kitchen. He heard her trying to say something. He got a

second, larger knife, went back to the living room and started stabbing her again and then

cut her throat on the left side. He got up. He noticed that he had cut his arm and was

bleeding. He took his shirt off to stop the bleeding. He was freaking out. He went to the

bedroom to check on the boy. The boy was ok and asleep. He saw he was bleeding on the

bed. He went to the other bedroom for some reason, just walking around, trying to think

what to do. He went back to check on Debbie Veler. She was no longer breathing. He

looked at the clock. It was 3:45 a.m. (1/25/05Tpp. 69-73)

       He changed into his other clothes. He went back to his house. He wiped the

blood off with a wet towel and put a bandage on his cut. He went back to Debbie Veler’s

house. He cut the duct tape off her hands and feet. He went to the bathroom where he

got a container of cleaning liquid. He went back to Debbie Veler’s body and pulled

down her pants and underwear to make it look crazy. He poured some cleaning liquid on

her. He didn’t know why he did that. He was just freaking out. He got some lotion from

the bathroom and poured that on her. He wrote, “You owe me money” on an envelope he

found on a table and put it on her body. He got some more cleaning liquid from the

bathroom and poured it on her body. He wrote “I will kill” on the couch. He wasn’t

referring to anything or anyone. He was just trying to make it look like it was done by

someone who was crazy. He went into the bedroom and wiped some blood off the wall

with a towel. He cut out part of the sheet and mattress where he saw some blood stains

and put everything in his duffle bag. He went outside with his hammer and used it to pry

open a back window, breaking the lock, and cut the telephone line. He went back inside.
                                            9


There was $17.00 on the countertop that he took with him. There were credit cards on

the countertop that he spread on her body to make it look like a robbery. He drove in

Debbie Veler’s car to a Food Lion on 211 business where he disposed of the duffle bag.

He went back to Debbie Veler’s house, turned off all of the lights, and went home. He

sat in his room, thinking about what he had done. It was 5:00 a.m. When he went to

sleep, he had a dream about the killing. He woke up feeling real funny and scared.

(1/25/05Tpp. 73-80)

        At the end of the statement, in what appears to be a response to a question asked

as an afterthought, the statement says that he got the knife because he knew he would

have to kill her. He had told Debbie Veler to calm down and not to call the police, but

she wouldn’t do that. If she had agreed not to tell on him, he would not have killed her.

(1/25/05Tpp. 81)

        The only significant factual dispute at the trial came from the competing opinions

of the mental health experts who did forensic evaluations of Mr. Goss for the defense and

for the State.

        Dr. James Hilkey evaluated Mr. Goss for the defense. He is a licensed clinical

psychologist. He was in private practice divided between counseling patients and doing

clinical evaluations, after retiring from twenty years of employment with the federal

prisons doing forensic evaluations of federal prisoners for the federal courts. Dr. Hilkey

interviewed Mr. Goss three times, gave him a battery of psychological tests, reviewed

records and reports relating to his psychosocial history and reviewed law enforcement

files relating to the case. The testing showed that Mr. Goss had a full scale IQ of 89, in

the borderline range between low normal and mental retardation, that he had a limited
                                             10


ability to cope with stress, that he was emotionally labile, that he was subject to being

explosive, and that his reality testing was in jeopardy, that under stress he could have

brief periods of psychosis where he would misinterpret and distort reality. He diagnosed

Mr. Goss as suffering from borderline personality disorder with antisocial features. He

was suffering from this psychological disorder at the time of the homicide. It severely

impaired his ability to make and carry out plans. His consumption of alcohol further

impaired his ability to conform and to appropriate behavior. It was Dr. Hilkey’s opinion

that Mr. Goss’ ability to form the specific intent to kill Debbie Veler was severely

impaired. (1/31/05Tpp. 19-68)

       Dr. Robert Brown, Jr., evaluated Mr. Goss for the State. He was board certified

as an internist and as a psychiatrist and held a position on the clinical faculty at the

University of Virginia medical school in Charlottesville, Virginia.             Dr. Brown

interviewed Mr. Goss, reviewed the results of the psychological testing done by Dr.

Hilkey, reviewed the records and reports relating to Mr. Goss’ psychosocial history and

reviewed law enforcement files relating to the case. It was his opinion that Mr. Goss was

suffering from antisocial personality disorder. In Dr. Brown’s opinion this disorder does

not cause someone to lack the ability to make and carry out plans. He didn’t think that

Mr. Goss’ intellectual capacity in the borderline range would limit his ability to carry out

plans. He didn’t think that Mr. Goss’ consumption of alcohol would have impaired his

ability to think, plan and act. It was his opinion that Mr. Goss had the ability to plan, did

plan and did carry it out. (1/31/05Tpp. 214-222; 2/1/05Tpp. 35-38, 41-43, 52, 76)

       The State also presented evidence from Rob Willis that after Willis had provided

the police with statements that Willis claimed Mr. Goss made confessing to the killing,
                                             11


Mr. Goss assaulted him in the jail. The State offered, and the trial court allowed, this

evidence solely for two limited purposes, 1) to show consciousness of guilt and 2) as part

of the information on which the State’s mental health expert relied for his opinions. In

closing arguments, the prosecutor argued that the murder of Ms. Veler was premeditated

and deliberated and for the purpose of eliminating a witness. The prosecutor argued that

people tend to do things repeatedly and that Mr. Goss “basically, attempted to do the

same thing by eliminating a witness with regard to Rob Willis in the jail.” (1/24/05Tpp.

84-90; 1/24/05Tpp. 149-154; 1/31/05Tpp. 162-182, 187-188; 2/1/05Tpp. 13-15, 16, 18-

29, 31-32, 34; 2/2/05Tpp. 68-69)1

         The jury was instructed on first degree murder, both on the theory of

premeditation and deliberation and on the theory of felony murder with first degree

burglary and/or armed robbery as the underlying felony. The jury was instructed on

second degree murder. The jury was instructed on diminished capacity. (2/2/05Tpp. 93-

107) At the end of its deliberations, the jury returned a verdict finding Mr. Goss guilty of

first degree murder on both theories. (2/2/05Tpp. 128-130; Rp. 120)

II.      EVIDENCE AND VERDICT IN THE PENALTY PHASE.

         The penalty phase of the trial began immediately after the return of the verdict of

guilty of first degree murder. The additional evidence offered by the State in the penalty

phase was limited to testimony from Debbie Veler’s brother and mother about the impact

of her death on them. (2/2/05Tpp. 135-149)

         The defense presented evidence about Mr. Goss’ life, history and background

from a number of witness, including Dr. Hilkey, Deborah Grey, a licensed clinical social



1
    The impropriety of the prosecutor’s argument is the subject of Argument IV below.
                                           12


worker who prepared a psychosocial history based on a variety of kinds of records

relating to Mr. Goss and interviews of people who knew and dealt with him, April

Greenhill, who was one of the teaching parents at a residential behavior modification

program where Mr. Goss spent a year and a half when he was in his teens, and members

of Mr. Goss’ family. That evidence showed the following:

       Mr. Goss, born 4 November 1974, was thirty years old at the time of the trial. He

was the youngest of three children born to Jim and Anna Goss. He had two older sisters.

The family lived in Ashe County. Jim Goss was a minister, worked as a jailer at the Ashe

County Sheriff’s Department for seventeen years, until he lost his job in 1990, and had a

small cable television business. Anna Goss worked at Lowes and was a real estate

broker. (2/4/05Tpp. 11, 45, 162-165; 2/7/05Tpp. 11)

       Jim Goss was treated for depression when Mr. Goss was very young. There was a

time when he attempted suicide as the result of depression brought on by financial

difficulties in his cable television business. He got a gun and held it to his head in the

living room. His wife and daughter had to wrestle it away from him. Mr. Goss was in

the first grade when this happened. His mother didn’t think he witnessed his father’s

suicide attempt, but he had. He described the event to her in a manner that made it clear

he had seen it. (2/4/05Tpp. 14-15, 165-168)

       Mr. Goss was ill a lot when he was an infant. His mother had to stay up with him

at night. He started sleeping with his mother. That continued until he was 11 or 12. At

some point, his mother decided he was old enough to sleep by himself. She would let

him fall asleep beside her and then move back to her own bed. He would end up in her

bed by the end of the night. She tried locking her bedroom door. He would bring his
                                            13


mattress and sleep outside his door. When he became a teenager, he still wanted a parent

to lay down with him to help him get to sleep. (2/4/05Tpp. 11-12; 2/7/05Tpp. 11-15)

       Mr. Goss tried not to go to school from the very start. He threw a tantrum the first

day he was taken to school. His mother had to leave for work at 6:00 a.m. The

responsibility for getting him up, ready and on the bus for school fell to his older sister,

Angie. He would often hide from her to avoid going to school. Eventually, she would

get ready for school before she woke him so there was no time for him to hide from her.

That worked most of the time. Sometimes he would just run and she would have to leave

him so she could go to her school. His truancy got worse every year but one. Testing,

beginning in the third grade, showed he had a very limited intellectual capacity and could

not perform on the same level as other children. He eventually dropped out of school

entirely when he was a teenager. (2/4/05Tpp. 12-14, 168-172; 2/7/05Tpp. 15-17, 35-38)

       In addition to increasing problems with truancy, Mr. Goss’ tantrums got worse as

he got bigger. At times he would shove his parents, particularly his mother. He became

involved in the juvenile system when he was in the sixth grade. When he was in the

seventh grade and on juvenile probation, he was referred to the local mental health center

because of concerns about how he was doing in school and at home. He was placed in

Copper Kettle, a group home that had a behavior modification program.              He had

problems with adjustment, suicidal thoughts, violent nightmares and he would not bathe.

Copper Kettle sent him to Charter Hospital in Winston-Salem, where he stayed for a

month. He was on medication when he came back to Copper Kettle from Charter, and

his behavior changed dramatically when on that medication.          He was not angry or

explosive while on medication. He had his best school performance while he was at
                                            14


Copper Kettle. He was there for about a year and a half. He never completed the

program there. His father took him out of Copper Kettle against the advice of the people

running the program. He was later placed at Crossnore, a school for children with

emotional and behavioral problems. He did not complete that program because his father

lost his job and his family could not afford to keep him there. (2/4/05Tpp. 14-24, 46-47,

60-64, 90-100, 187-188; 2/7/05Tpp. 17-18)

       His family described him as being two different people. There would be sudden

changes of behavior and changes in mood from being cooperative to being explosive for

no apparent reason. One minute he would be doing well and the next minute he would be

doing very poorly. There were times when he would get suddenly angry and explosive in

response to someone saying a simple sentence. Then it was like a switched turned and he

was back to his normal self. The problem was noted in his school records as early as the

third grade and existed throughout his life. He also made decisions impulsively, without

thinking things through. Even as an adult in his 20’s, he was not able to maintain

independent living. He could not organize himself to pay bills, could not budget his

money. He was never able to keep a successful bank account. He did not have a driver’s

license because of driving without wearing his glasses and failing to pay fines. He had a

series of part time or short term jobs. If he got upset about something, he would quit.

(2/4/05Tpp. 16-17, 26-28, 41-43, 49-51, 67-68, 172-174; 2/7/05Tpp. 18-20)

       In 2000, Mr. Goss met a woman on the internet named Daisy Segura. She lived

in Atlanta. He flew down there for a weekend. He came back to Ashe County. Two

weeks later, he quit his job and moved to Atlanta. Mr. Goss and Daisy married. Their

son was born in December 2000. He was the best thing that ever happened to Mr. Goss.
                                            15


Things went well at first. Mr. Goss had a full time job at a Publix grocery store and later

at Wal-Mart. He turned his paychecks over to Daisy to pay the bills. At some point, the

local DSS agency took custody of their son, based on suspicion of physical abuse. The

suspicion was never substantiated. Removal of their son was very stressful. The Court

ordered weekly visits to a pediatrician and psychological counseling for Mr. Goss,

creating great financial strain. Eventually, Daisy and Mr. Goss separated. He began

using crack cocaine with other employees at Wal-Mart. Mr. Goss became homeless.

Daisy would let him sleep in her car and gave him food and money. Eventually, he was

hospitalized in Georgia after he attempted suicide. That’s when he moved back to his

parent’s house in Ashe County in May 2003. He got a job at Food Lion. He thought it

was going to be full time employment, but it was only part time. He found his hours

insufficient and impulsively quit by not going to work. He had no driver’s license or car.

His mother would pay him for doing things around the house. There were times when he

was cooperative and cheerful, keeping his room immaculate. Other times he would stay

in his room for long periods, would not bathe or wash his hair and would not interact with

the family. His mother said it was like living with a young teenager. In October 2003,

his father had him arrested for assault. (2/4/05Tpp. 29-43, 83-88, 174-183; 2/7/05Tpp.

20-33)

         At the conclusion of the penalty phase, the jury returned a verdict which found

two aggravating circumstances: (1) that the murder was committed for the purpose of

avoiding a lawful arrest; and (2) that the murder was especially heinous, atrocious or

cruel.   The jury found one statutory mitigating circumstance, that the murder was

committed while the defendant was under the influence of a mental or emotional
                                            16


disturbance.   The jury found one non-statutory mitigating circumstance, that the

defendant has a lengthy history of emotional disturbance which required out-of-home

placements when he was a teenager. The jury also found some other circumstance or

circumstances [without specifying in the verdict what they were] that had mitigating

value. The jury found that the mitigating circumstances were insufficient to outweigh the

aggravating circumstances and that the aggravating circumstances were sufficiently

substantial to call for the imposition of the death penalty when considered with the

mitigating circumstances. The jury “recommended” death as the sentence. (Rpp. 158-

161)

                                      ARGUMENT

I.     THE TRIAL COURT ORDER BARRING MR. GOSS FROM
       CONSULTING WITH HIS ATTORNEY DURING THE MID-TRIAL, DAY
       LONG, EXAMINATION OF HIM BY THE STATE’S MENTAL HEALTH
       EXPERT WAS A VIOLATION OF HIS STATE AND FEDERAL
       CONSTITUTIONAL RIGHT TO COUNSEL WHICH REQUIRES THAT
       HIS CONVICTION BE REVERSED.

       Assignment of Error No. 9, Rpp. 175-176
             1/26/05Tp. 12, lines 14-19

       The State retained the services of a psychiatrist from Charlottesville, Virginia, Dr.

Robert Brown, Jr., to do a psychiatric evaluation of Mr. Goss and present testimony at the

trial. (Rpp. 100- 103) Arrangements were made for Dr. Brown to examine Mr. Goss in

Ashe County during a recess of the guilt-innocence phase of the trial.           The State

estimated that Dr. Brown would need between six and nine hours, a full working day,

with Mr. Goss to do his examination. Mr. Goss’ trial counsel indicated that he would be

in Ashe County to be available to consult with Mr. Goss during Dr. Brown’s examination

of him. The State objected. The trial court ruled that Mr. Goss would not be permitted to
                                              17


consult with his counsel at anytime during Dr. Brown’s examination of him, that he

would not be allowed to consult with counsel until after the examination was completed.

(1/24/05Tpp. 90-92, 203-205, 242-244; 1/25/05Tpp. 187-191; 1/26/05Tpp. 3-15; App. 1-

13)

       This ruling by the trial court deprived Mr. Goss of his state and federal

constitutional right to counsel at a critical stage of the prosecution, a structural error that

requires a reversal of the conviction and remand for a new trial.

       A.      Standard of Review.

       Whether a defendant has been deprived of his right to counsel at a critical stage of

the prosecution against him is an issue of law that is determined by an appellate court de

novo. See Buchanan v. Kentucky, 483 U.S. 402, 424-425 (1987); Gedders v. United

States, 415 U.S. 80 (1976); Estelle v. Smith, 451 U.S. 454, (1971).

       B.      Events in the Trial Court.

       Prior to trial, the State filed a motion and obtained orders authorizing the State to

retain the services of Dr. Robert Brown, Jr., to conduct a mental health examination of

Mr. Goss and testify for the State at trial. (Rpp. 100-103) Some time in December 2004,

Dr. Brown traveled from Charlottesville, Virginia, to Central Prison in Raleigh, where

Mr. Goss was then being held as a safe keeper, for the purpose of examining Mr. Goss.

The defense had no notice that Dr. Brown was coming. The prosecutor made some

telephone calls to defense counsel, but never spoke to him and never informed him about

Dr. Brown coming to examine Mr. Goss. At the beginning of his interview with Mr.

Goss, Dr. Brown told him that he had a right not to answer any questions and that Mr.

Goss said he would not answer any of Dr. Brown’s questions. Sometime after this date,
                                            18


the prosecutor told defense counsel that Mr. Goss had refused to answer Dr. Brown’s

questions. The State made no further mention of the matter prior to trial. (1/24/05Tpp.

6-8, 41-45, 55-56)

       On the first day of the trial, Tuesday, 18 January 2005, the trial court took up

various unresolved motions prior to the commencement of jury selection. During a

discussion of the status of providing discovery, the prosecutor acknowledged that the

defense had provided the State with the report of the defense mental health expert as well

as the raw data used in that evaluation and copies of mental health records the defense

had discovered and a written social history of the defendant. The prosecutor stated that

the State’s mental health expert had not prepared a report of his evaluation of the

defendant, because Mr. Goss refused to speak to him when Dr. Brown went to see Mr.

Goss at the prison.     Beyond this report, the State made no request for remedy.

(1/18/05Tpp. 27-28)

       Jury selection was completed on Friday, 21 January. (1/21/05Tpp. 116-120) In

opening statement that morning, defense counsel told the jury that Mr. Goss did, in fact,

kill Debbie Veler, that the issue for the jury would be the degree of homicide committed,

and that the jury would hear testimony from Dr. James Hilkey about the effect of Mr.

Goss’ mental disorders and his consumption of alcohol on his ability to form the specific

intent to kill that is required for first degree murder. (1/21/05Tpp. 138-143). After lunch,

the State began presenting its evidence.

       When court reconvened on Monday, 24 January 2005, following the weekend

recess, the prosecutor announced for the first time the State’s intent to move to bar any

testimony from Dr. Hilkey because Mr. Goss would not speak to Dr. Brown at the prison
                                            19


in mid-December. The circumstances that led up to the situation were presented through

the statements of the attorneys. Prior to the date of Dr. Brown’s travel to Central Prison,

there were a series of telephone calls back and forth between the prosecutor and defense

counsel without either talking to the other. As a result, Mr. Goss and his counsel had no

notice that Dr. Brown would be coming to Central Prison prior to the time he arrived.

When he arrived, Dr. Brown told Mr. Goss that he was not required to answer Dr.

Brown’s questions. Mr. Goss said he would not answer Dr. Brown’s questions. After

Dr. Brown left, the prosecutor told defense counsel about what had occurred. The subject

of Mr. Goss submitting to an interview by Dr. Brown was never brought up after that,

until the State raised the matter as a basis for seeking to exclude testimony from the

defense mental health expert. (1/24/05Tpp. 6-8, 41-45, 55-56)

       The trial judge expressed displeasure that the issue had not been raised prior to the

mid trial. Defense counsel said that he had recently advised Mr. Goss about the potential

consequences of not submitting to an examination by the State’s expert, that Mr. Goss

was willing to do so, and that the State’s expert could examine Mr. Goss at the Ashe

County jail in the evening after court had adjourned. The trial court instructed the

prosecution to find out from their expert about what he could do about coming to Ashe

County to evaluate the defendant and said that the court would grant whatever recess of

the trial that was necessary for that purpose. (1/24/05Tpp. 41-57)

       After the lunch recess that day, the prosecutor reported to the trial judge that Dr.

Brown could come from Charlottesville to Ashe County on Wednesday night and be

there Thursday, and that he said he would need four to six hours for a clinical interview

of Mr. Goss and an additional two to three hours to administer tests, and that it would
                                            20


take him an additional day to prepare a report. The trial judge said that the trial would be

adjourned for whatever time was necessary for that purpose. (1/24/05Tpp. 90-92) At the

end of that day, the prosecutor estimated that it would take an additional one to two days

to complete the State’s evidence. The trial judge asked the prosecutors to find out

whether their expert could complete all of his work in one day so that the court could

recess the trial when the State rested and reconvene the trial on Friday. (1/24/05Tpp.

203-205)

       On Tuesday, 25 January, the prosecutor reported that the State’s mental health

expert would travel to Ashe County on Wednesday, would begin his evaluation of Mr.

Goss first thing Thursday morning, that his interview and testing of the defendant would

take all day, and that he would need additional time to prepare a report. The trial judge

said the trial would be adjourned when the State rested until the following Monday. The

prosecutor asked if defense counsel intended to be present at Dr. Brown’s interview and

testing of Mr. Goss, arguing that the law did not permit defense counsel to be present

during the examination of the defendant by the State’s expert. Defense counsel stated

that he did not intend to sit in on the examination of the defendant by the State’s expert,

but did intend to be nearby and available during that examination in the event that Mr.

Goss needed to consult with his attorney about any question he might have about what he

should or should not do. (1/25/05Tpp. 187-191) The State rested its case that afternoon,

and the jury was excused until the following Monday. (1/25/05Tpp. 241-247)

       Court convened the following morning, Wednesday, 26 January, outside the

presence of the jury. After denying the defendant’s motion to dismiss, the trial judge

turned to the mechanics of the examination of the defendant by the State’s mental health
                                            21


expert on Thursday. The trial judge had been informed that the jail did not have a

suitable place for the examination to take place and, instead, the defendant would be

brought to the courthouse where the State’s expert would interview and test the defendant

in the law library. Defense counsel again stated his intent to be near by and available in

the event that Mr. Goss wanted to consult with counsel about anything during the

examination. The trial court expressed his belief that, although the defendant did not

have a right to have his counsel present for the examination, he would have the right to

consult with his attorney if he needed to. The prosecutor objected, arguing that the

defendant had no right to access to his attorney during examination of him by the State’s

expert.    Defense stated that, when other clients had a mental health evaluation at

Dorothea Dix Hospital, it had always been done with the understanding that the

defendant could consult with his attorney if he felt the need to do so during that

evaluation. (1/26/05Tpp. 3-6; App. 1-4)

          The trial judge took a recess so that the parties could obtain and offer any

authority that related to the issue. Ultimately, based on this Court’s decision in State v.

Davis, 349 N.C. 1, 506 S.E.2d 455 (1998), cert. denied, 526 U.S. 1161 (1999), the trial

ruled that the defendant had a right to consult with counsel about whether to submit to the

examination by the State’s expert before the examination took place, but had no right to

consult with his attorney at any point during the examination, from the time the day long

examination began until the State’s expert was finished. (1/26/05Tpp. 6-15; App. 4-13)2




2
  The trial judge stated to defense counsel that the defendant had only the right to consult
with counsel about whether to submit to the examination by the State’s expert, but that,
once the examination began, , “He doesn’t have any right to call for you to come in or
right to go talk to you or anything else. He needs to understand that and you need to fully
                                             22


       C.      The Right to Counsel During All Critical Stages of the Prosecution.

       A criminal defendant's constitutional right to counsel "requires the guiding hand

of counsel at every step in the proceedings." Powell v. Alabama, 287 U.S. 45, 69 (1932).

“It is central to that principle that . . . the accused is guaranteed that he need not stand

alone against the State at any stage of the prosecution, formal or informal, in court or out,

where counsel's absence might derogate from the accused's right to a fair trial.”

United States v. Wade, 388 U.S. 218, 226-227 (1967).

       The examination of a criminal defendant by a mental health expert at the request

of the prosecution is a critical stage of the prosecution where the defendant has the right

to the guiding hand of counsel, even when it takes place prior to trial. Estelle v. Smith,

451 U.S. 454, 470 (1981).

       The issue in Smith was the admissibility of the testimony of a psychiatrist in the

penalty phase of a murder trial that the defendant was a severe sociopath who would

continue similar criminal acts if given the opportunity to do so. Under the Texas capital

sentencing scheme, the future dangerousness of the defendant was one of three things that

the prosecution was required to prove in order to obtain a death sentence.               The

psychiatrist had examined the defendant under an order of the trial court directing the

prosecution to arrange for the psychiatrist to examine the defendant to determine his

competency to stand trial.

       The Court in Smith, held that the admission of the testimony of the State’s

psychiatrist violated Smith’s Fifth Amendment privilege against self incrimination

because the defendant was not advised before the psychiatric examination that he had a


tell him that under these cases, the examination is the doctor’s. When he finishes with it,
then he comes back out and talks to you after it is over.” (1/26/05Tp. 12)
                                              23


right to remain silent and that anything he said could be used against him, as required by

Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Court also held that the psychiatric

examination of the defendant also violated his Sixth Amendment right to counsel. The

Court held that the interview of the defendant by the psychiatrist was a “’critical stage’ of

the aggregate proceedings against” him and that, because defense counsel was not

notified in advance that the psychiatric examination would encompass the issue of future

dangerousness which “denied [the defendant] the assistance of his attorneys in making

the significant decision of whether to submit to the examination and to what end the

psychiatrist’s findings could be employed.” 451 U.S. at 470-471.

       In its opinion in Smith, the Supreme Court noted in a footnote:

       Respondent does not assert, and the Court of Appeals did not find, any
       constitutional right to have counsel actually present during the
       examination. In fact, the Court of Appeals recognized that "an attorney
       present during the psychiatric interview could contribute little and might
       seriously disrupt the examination."

Id. at 470 n. 14 (quoting from Smith v. Estelle, 602 F.2d 694, 708 (5th Cir. 1971). Based

on this footnote, this Court held in State v. Davis, 349 N.C. 1, 19-20, 506 S.E.2d 455, 465

(1998), cert. denied, 526 U.S. 1161 (1999) that a defendant had no constitutional right to

have his counsel present to sit in on an examination of a defendant as to his competency

to stand trial. In that case, the psychiatrist that was to examine the defendant testified that

the presence of defense counsel would interfere with the competency examination

because she had found the defendant incompetent to stand trial previously based on his

mistrust of his counsel and thought the defendant would be more likely to tell her about

any dissatisfaction with defense counsel if counsel was not present.
                                            24


       Contrary to the ruling of the trial judge, the decision in Davis does not control the

issue raised by the State’s objection to Mr. Goss being allowed to consult with his

counsel at any time prior to the completion of the examination by Dr. Brown. In Davis,

defense counsel sought to sit in on the examination. In this case, defense counsel did not

seek to be present for the examination itself. Whether, as the State insisted in this case,

Mr. Goss could be barred from any consultation with his counsel from the time that the

day long examination began until it was completed, is a quite different matter, an issue

not addressed in Davis.

       In this case, the examination of Mr. Goss by the State’s mental health expert

occurred during a recess of the trial. Barring a defendant from consulting with his

counsel for a lengthy period during a recess in a trial is a violation of the constitutional

right to assistance of counsel. Gedders v. United States, 425 U.S. 80 (1976); United

States v. Cobb, 905 F.2d 784 (4th Cir. 1990), cert. denied sub nom. Hatcher v. United

States, 498 U.S. 1049 (1992).

       In Gedders, the defendant testified at trial. His direct testimony was completed

late in the afternoon, and the jury was excused for the overnight recess. At the request of

the prosecutor, the trial court directly instructed the defendant he was not to talk to his

attorney about anything during the overnight recess prior to commencement of cross-

examination. The order was consistent with the directions given to other witnesses

before recesses not to discuss their testimony with anyone. The trial judge allowed

defense counsel to ask the defendant what witnesses he thought should be called the

following morning. The trial judge told defense counsel that the court would grant a

recess after the defendant’s testimony and give defense counsel whatever time he needed
                                             25


to talk to the defendant about trial strategy. The defendant was cross-examined the

following morning, and defense counsel was permitted to consult with the defendant over

the lunch recess, prior to the redirect examination.

       On this set of facts, the Supreme Court held that an order by the trial court not to

talk to the defendant’s attorney about anything during an overnight recess in the trial

deprived him of his Sixth Amendment right to assistance of counsel. In doing so, the

Court began by recognizing that a trial judge had the authority to bar a witness from

discussing his testimony prior to cross-examination and that such an order served a

legitimate purpose. However, because the overnight recess was a time during which it

was customary for a defendant and defense counsel to consult about a variety of things

concerning the trial, the Court held that the order barring the defendant from talking to

his counsel during the recess deprived him of his right to assistance of counsel and

reversed the conviction.

       In a later case, Perry v. Leake, 488 U.S. 272 (1989), the Supreme Court upheld a

trial court order barring a criminal defendant from consulting with his counsel during a

15 minute recess called between the end of his direct testimony and the beginning of the

prosecutions cross-examination. Noting that the line between an overnight recess and an

a short recess was “a thin one,” 488 U.S. at 280, the Court explained:

       It is the defendant's right to unrestricted access to his lawyer for advice on
       a variety of trial related matters that is controlling in the context of a long
       recess. See Gedders v. United States, 425 U.S., at 88. The fact that such
       discussions will inevitably include some consideration of the defendant's
       ongoing testimony does not compromise that basic right. But in a short
       recess in which it is appropriate to presume that nothing but the testimony
       will be discussed, the testifying defendant does not have a constitutional
       right to advice.

488 U.S. at 284.
                                             26


       The distinction between Gedders, where the Court held that a ban on a

defendant’s consultation with counsel was a violation of the right to assistance of

counsel, and Perry, where the Court held that a ban on a defendant’s consultation with

counsel did not violate his right to assistance of counsel, relates to the length of time

over which the ban applies. In United States v. Cobb, 905 F.2d 784 (4th Cir. 1990), cert.

denied sub nom. Hatcher v. United States, 498 U.S. 1049 (1992), the Court addressed an

order by the trial court that a criminal defendant not discuss his ongoing testimony with

anyone, including his counsel, during a weekend recess that occurred in the middle of the

government’s cross-examination. 905 F.2d at 786. The Court rejected the government’s

argument that the order did not violate the rule in Gedders because the defendant was not

prohibited from discussing matters other than his ongoing cross-examination.            “To

remove from Cobb the ability to discuss with his attorney any aspect of his ongoing

testimony effectively eviscerated his ability to discuss and plan trial strategy.” The Court

held that the order “effectively denied him access to his counsel,” which required that his

conviction be reversed. 905 F.2d at 792.

       In this case, the examination of Mr. Goss by Dr. Brown, the State’s psychiatrist,

was scheduled to begin first thing in the morning on Thursday, 27 January, and was

projected to last all day. At the request of the State, the trial court instructed Mr. Goss

that he could not talk to his counsel about anything from the point at which Dr. Brown

began his examination until it was completed. This kind of lengthy ban on consultation

with counsel in the middle of the trial violated the rule in Gedders.
                                             27


       In Estelle v. Smith, supra, the Supreme Court noted the critical need for

consultation with counsel about a psychiatric examination by the prosecution’s mental

health expert:

       As the Court of Appeals observed, the decision to be made regarding the
       proposed psychiatric evaluation is "literally a life or death matter" and is
       "difficult . . . even for an attorney" because it requires "a knowledge of
       what other evidence is available, of the particular psychiatrist's biases and
       predilections, [and] of possible alternative strategies at the sentencing
       hearing." 602 F.2d, at 708. It follows logically from our precedents that a
       defendant should not be forced to resolve such an important issue without
       "the guiding hand of counsel."

In this case, Mr. Goss was able to consult with his counsel about whether to submit to the

examination by Dr. Brown before it began, but real knowledge of Dr. Brown’s “biases

and predilections” could only be gained by the experience of being examined by him and

Mr. Goss should have been allowed to consult with counsel during that examination

about whether to continue to submit to that examination. Apart from the issue of whether

to submit to the examination, matters occurring during that examination may have raised

issues about Mr. Goss’ history and background that had not been anticipated before the

examination and arose during Dr. Brown’s examination of him, issues raising matters

about additional witnesses or additional subjects that Mr. Goss would need to talk to

counsel about while the matter was still fresh in his mind. The day long ban on any

consultation with trial counsel deprived Mr. Goss of his constitutional right to assistance

of counsel during a critical stage of the prosecution.

       D.        The Error Requires a New Trial.

       Because of the fundamental importance of the right to counsel, a trial court order

that bans consultation with counsel for a lengthy period during a recess in the trial

requires a reversal of a criminal conviction without regard to whether the error is
                                           28


prejudicial or can be said to be harmless. Perry v. Leake, 488 U.S. at 278-280; United

States v. Cronic, 466 U.S. 648, 653-654 (1984).

II.    THE TRIAL COURT ERRED BY ALLOWING THE STATE TO REOPEN
       THE VOIR DIRE OF TWO JURORS FOUND ACCEPTABLE BY BOTH
       THE STATE AND DEFENSE BASED ON A FINDING THAT THE
       JURORS HAD FAILED TO CORRECTLY ANSWER QUESTIONS
       DURING THE PROSEUCTOR’S VOIR DIRE WHEN THE RECORD
       SHOWS THAT THE JURORS DID NOT GIVE INCORRECT ANSWERS
       TO THE PROSECUTOR’S QUESTIONS.

       Assignment of Error No. 2, Rp. 172
             1/19/05Tp. 93, lines 14-20, 23-25
             1/19/05Tp. 94, lines 1-2
             1/19/05Tp. 99, lines 16-20
             1/19/05Tp. 100, lines 1-9

       Jury selection began on the morning of 18 January 2005. (1/18/05Tp. 44) The

prosecution began questioning potential jurors that afternoon. (1/18/05Tp. 153) After

exercising a total of seven peremptory challenges (1/18/05Tpp. 177, 216), the prosecution

passed a panel of twelve jurors that the State found acceptable to the defense the

following morning. (1/19/05Tpp. 21-22) After questioning of those twelve by defense

counsel, the Defendant exercised eight peremptory challenges, finding the remaining four

acceptable. (1/19/05Tpp. 90-91)

       At that point, after the venire was excused from the courtroom, the State asked the

trial court to reopen the voir dire of jurors that both parties had announced were

acceptable. Over defense objection (1/19/05Tpp. 93, 97; App. 16, 20), the trial judge

granted the motion to reopen the voir dire of two jurors, Jason Brown and Dennis Dancy,

under the provisions of N.C.G.S. § 15A-1214(g) on the ground that they made incorrect

statements by failing to respond to a particular question put to them and other jurors

during the prosecutor’s voir dire. (1/19/05Tpp. 91-100; App. 14-23) As expressly
                                             29


provided by that statute, the prosecutor then exercised peremptory challenges to excuse

both jurors. (1/19/05Tpp. 105-107)

       Contrary to the trial judge’s conclusion, neither Juror Brown nor Juror Darcy

made an incorrect statement during the prosecutor’s voir dire. Their failure to respond

was a correct response to the question actually put to them by the prosecutor. Because

the record does not support the trial judge’s finding that was the basis for granting the

State’s motion to reopen the voir dire, the decision by the trial court to permit the State to

reopen the voir dire of Jurors Brown and Darcy and excuse them from the jury was error.

       A.      Statutory Provisions and Standard of Review.

       The procedure for jury selection is governed by N.C.G.S § 15A-1214.

Subsections 1214(d) and (e) require that the prosecutor examine the first twelve jurors

and any replacements called to fill seats vacated by challenges for cause and peremptory

challenges until the prosecutor is satisfied with a full complement of 12 jurors and

tenders them to the defense. The defendant then conducts his examination of the jurors

found acceptable by the prosecutor. The purpose of this kind of statutory provision is to

protect the defendant by giving him the last opportunity to challenge a juror. State v.

Bock, 288 N.C. 145, 155-156, 217 S.E.2d 513, 519 (1975), death sentence vacated, 428

U.S. 903 (1976).

       Subsection (g) provides in relevant part:

              (g) If at any time after a juror has been accepted by a party, and
       before the jury is impaneled, it is discovered that the juror has made an
       incorrect statement during voir dire or that some other good reason exists:
              (1) The judge may examine, or permit counsel to examine, the
                    juror to determine whether there is a basis for challenge for
                    cause.
                                            30


               (2) If the judge determines there is a basis for challenge for cause,
                   he must excuse the juror or sustain any challenge for cause
                   that has been made.
               (3) If the judge determines there is no basis for challenge for
                   cause, any party who has not exhausted his peremptory
                   challenges may challenge the juror.

       This Court has held that the decision as to whether or not to allow a party to

reopen voir dire of a juror previously passed as acceptable is vested in the trial court’s

discretion. State v. Bond, 345 N.C. 1, 19, 478 S.E2d 163, 172 (1996), cert. denied, 521

U.S. 1124 (1997). A trial court’s discretionary decision is error when it makes it based

on an erroneous understanding of the law. See State v. Moore, 319 N.C. 645, 356 S.E.2d

336 (1987); State v. Jackson, 19 N.C. App. 370, 370, 199 S.E.2d 32, 33 (1973). A trial

court’s discretionary decision is error when it is based on findings of fact which are not

supported by the record. See State v. Reed, 355 N.C. 150, 155, 558 S.E.2d 167, 171

(2002); State v. Cunningham, 333 N.C. 744, 753-754, 429 S.E.2d 718, 723 (1993); State

v. Hightower, 331 N.C. 636, 641, 417 S.E.2d 237, 240 (1992).

       B.      The Jury Voir Dire.

       As the first group of jurors were called into the box, and as replacements were

called to fill seats of jurors excused, the trial judge began the voir dire by asking them

individually a series of questions about their personal background, the part of the county

they lived in, their employment, their marital status and their spouse’s employment, and

about their children. (1/18/05Tpp. 94-111, 131-135, 140-141) The trial judge then asked

if any of them had any involvement in the charges against Mr. Goss, if any had been an

adverse party to him in a civil action, if any of them had complained against him in a

criminal proceeding, if any of them were related to Mr. Goss or the victim or any of the

attorneys. (1/18/05Tpp. 111-113, 135-136, 141-142) The trial judge read the list of
                                            31


witnesses provided by the parties, asking the jurors if they knew any of them.

(1/18/05Tpp. 113-130, 141-142) The trial judge then asked the jurors if they had moral

or personal beliefs that would prevent them from sitting in judgment, if they had any

moral or religious beliefs that would prevent them from rendering a verdict in accordance

with the law, whether they had heard or read anything about the case and, if so, the

source and whether they could set that aside and decide the case solely on the evidence

presented in the courtroom and, finally, whether there was anything that would prevent

them from being a fair and impartial juror in the case. (1/18/05Tp. 137-139, 145-152)

When the trial judge completed this list of questions, the jurors remaining in the jury box

were turned over to the prosecution. (1/18/05Tpp. 152-153)

       The prosecutor’s voir dire of prospective jurors was quite brief. He began by

asking the jurors if any of them knew Mr. Goss’ parents or his uncle, Gene Goss, who

had been the Sheriff in Ashe County.         He asked several questions about capital

punishment. He asked whether the jurors felt that the death penalty was a necessary law,

whether they could be part of the system in a case where the death penalty might be

returned, and whether, if the jury’s verdict was the death penalty, whether they could

announce that verdict in the courtroom. He asked whether any of them, or any close

friend or relative, had been a criminal defendant, a victim of a crime or a witness in a

criminal case. He then turned to the defense of diminished capacity on which the defense

gave notice of intent to offer evidence, asking whether they would be able to follow the

trial judge’s instructions on this issue and about whether they had any personal

experiences with a psychologist or psychiatrist and whether they had any training in that
                                             32


field. He concluded by asking whether they agreed that, not only the defendant, but also

the State and the victim, was entitled to a fair trial. (1/18/05Tpp. 153-176)

       Jason Brown and Dennis Dancy were called from the venire to replace jurors who

had been excused by the prosecution peremptorily.            (1/18/05Tpp. 177-179)   The

prosecutor followed his pattern of voir dire described above when examining this new

group of jurors. (1/18/05Tpp. 209-216)

       While addressing this group, the prosecutor asked the following questions.

              MR. HORNER: Have any of you ever been a witness, a victim or
       a criminal defendant in a criminal matter? If you have, raise your hand.

              Any close friends or relatives who have either been a witness, a
       defendant or a victim in a criminal case?

(1/18/05Tp. 211) One of the group, Nancy Miller, apparently raised her hand and told

the prosecutor that her brother had been a defendant. (1/18/05Tpp. 211-212) It appears

from the record that neither Jason Brown nor Dennis Dancy raised their hand in response

to this question. Both were among the twelve jurors found acceptable by the prosecution

and passed to the defense for voir dire. (1/18/05Tpp. 189-194, 216-228; 1/19/05Tpp.11-

21) At the conclusion of the defense voir dire of the twelve, the Defendant excused eight

peremptorily. Jason Brown and Dennis Dancy were among the four found acceptable by

the defense. (1/19/05Tpp. 90-91)

       After the defense announced that it found four jurors acceptable, including Jason

Brown and Dennis Dancy, the prosecution moved to reopen the voir dire of them under

the provisions of N.C.G.S. § 15A-1214(g). The predicate for the prosecution’s claim

with respect to both Brown and Dancy that they had “made an incorrect statement during

voir dire or that some other good reason exists” was their failure to respond when asked
                                           33


the question quoted above. The trial judge allowed the motion to reopen based on their

failure to respond to the question quoted above. (1/19/05Tpp. 91-100; App. 14-23) After

a few brief questions, none of which explored any basis for a challenge for cause, the

prosecution excused both Brown and Dancy peremptorily.            (1/19/05Tpp. 105-107)

       C.      Reopening the State’s Voir Dire of Jason Brown.

       The predicate for the prosecution’s motion to reopen the voir dire of Jason Brown

was information from Sheriff’s Detective Houck that Brown’s biological father, Bobby

Bare, had been convicted of murder and that his biological uncle, Lynn Bare, was a

fugitive who was wanted on a charge of murder. (1/19/05Tpp. 95-100; App.18-23)

       Detective Houck reported the following information to the trial court: Houck

knew Jason Brown in high school. Brown’s name at that time was Jason Weaver. He

was adopted when he was a teenager, and Weaver was the name of his adoptive father.

Since that time, Jason Brown’s mother and adoptive father had separated and divorced.

After that, he had apparently taken on the name of Brown, his mother’s maiden name.

His biological father, Bobby Bare, was convicted of murder back in the 1980’s. His

uncle is a fugitive on the run.    The District Attorney added information about his

biological uncle, stating that he was on America’s Most Wanted as the person who

pushed a girl off a cliff and had been a fugitive for about ten years. (1/19/05Tpp. 96-97,

99; App. 19-20, 22) The prosecution asserted that this was information that should have

been reported when Jason Brown was asked during the prosecution voir dire if he “or a

close family member or friend” had been a criminal defendant. (1/19/05Tpp. 95, 97-98;

App. 18, 20-21)
                                             34


       Based on this information and over objection (1/19/05Tpp. 97; App. 20), the trial

judge ruled:

       [I]t appears there is good cause to allow reopening for the State in regard
       to Jason Brown based on Deputy Houck’s statement that he knows for a
       fact that Jason Brown’s biological father was convicted of murder and he
       has got an uncle that is on – that is a fugitive at this time, and when the
       State asked those questions, he did not respond.

(1/19/05Tp. 100; App. 23)

       Following this ruling, the prosecutor asked Jason Brown a few brief questions,

obtaining answers that Bobby Bare, his biological father, had been convicted of second

degree murder and that Lynn Bare, his biological uncle, was wanted for first degree

murder. Without any further questions about whether Jason Brown had any actual

contact or dealings with his biological father and uncle at any time, the State exercised its

statutory prerogative to excuse him peremptorily. (1/19/05Tpp. 106-107)

       The decision by a trial judge to allow the State to reopen voir dire of a juror

previously accepted is a matter of significance because the statute gives the State the

absolute right to exercise a peremptory challenge to remove the juror even if no basis for

a challenge for cause is established. State v. Rogers, 316 N.C. 203, 216, 341 S.E.2d 713,

721 (1986); State v. Freeman, 314 N.C. 432, 438, 333 S.E.2d 743, 747 (1985). This is a

significant alteration of the statutory scheme designed to benefit the defendant which

requires the prosecution to fully examine potential jurors and announce acceptance before

the defendant is called upon to examine those jurors. For that reason, N.C.G.S § 15A-

1214(g) specifically proscribes the circumstances where a trial court can allow the State

to reopen voir dire to two, when there is “information that the juror has made an incorrect
                                            35


statement during voir dire” or when some other good reason exists to allow further

examination to determine whether there is a basis for a challenge for cause.

       In prior cases where error has been assigned to a trial judge’s decision to allow

the State to reopen voir dire of a juror that it had previously accepted, this Court has

carefully examined the record to determine whether there was a basis for the trial court’s

determination that further voir dire should be allowed of a juror previously found

acceptable to the State. See State v. Holden, 346 N.C. 404, 428-429, 488 S.E.2d 514, 527

(1997), cert. denied, 476 U.S. 1165 (1986) (information that a juror had presented

arguments against the death penalty and asserted no person had the right to take the life

of another established good reason to reopen the voir dire to determine whether she had

not been candid when she told the court and prosecutor that she could consider the death

penalty and determine whether there was a basis for a challenge for cause); State v. Bond,

345 N.C. 1, 18-20, 478 S.E2d 163, 171-172 (1996), cert. denied, 521 U.S. 1124 (1997)

(statements by a juror on voir dire by the defense that he could not personally support a

death sentence provided a basis for concluding that he made at least one incorrect

statement in response to prosecution questions concerning his feeling about capital

punishment); State v. Womble, 343 N.C. 667, 677-678, 473 S.E.2d 291 (1996), cert.

denied, 519 U.S. 1095 (1997) (juror’s answers about the death penalty during defense

voir dire inconsistent with the answers given to questions by the trial court and

prosecutor).

       The fact that Jason Brown’s biological father had been convicted of murder and

biological uncle was wanted for murder provided no basis for any claim that he had made

a false statement when he failed to respond to the prosecutor’s question about whether he
                                              36


had a close friend or relative who had been a criminal defendant. Both as a practical fact

and as a matter of law, Brown had no family relationship with his biological father and

uncle after his adoption as a teenager. This Court had noted that the purpose and effect of

a legal adoption is to terminate all family ties with a biological parent and his kin.

       in enacting G.S. 48-23 [the statute dealing with the legal effect of a final
       order of adoption] the legislature contemplated that upon a final order of
       adoption a complete substitution of families would take place with the
       adopted child becoming the child of his adoptive parents and a member of
       their family; likewise, the legal relationship with the child's natural parents
       and family would by virtue of the adoption order be completely severed.

Crumpton v. Mitchell, 303 N.C. 657, 663, 281 S.E.2d 1, 5 (1981). There was nothing in

the information supplied to the trial court from Detective Houck to suggest that Jason

Brown did, or had any reason to, regard his biological father and uncle as close relatives.

Indeed, there was no information supplied to the Court that, apart from the genetic

connection, he had any relationship of any kind with his biological father and uncle.

       All that occurred in this case was that the prosecution apparently learned of

information after passing Jason Brown as acceptable that might have led the prosecutor to

ask different question during his voir dire, although there was nothing about that

information which suggested any possible challenge for cause. The statute does not

permit the trial court to allow the State to reopen voir dire merely because the prosecution

wants to address an issue that was not addressed before announcing the acceptance of a

juror. The decision to allow the State to reopen the voir dire of Jason Brown was error.

       D.      Reopening the State’s Voir Dire of Dennis Dancy.

       The predicate for the State’s motion to reopen the voir dire of Dennis Dancy was

answers he gave during the defense voir dire.
                                              37


       During voir dire of the jurors passed by the State as acceptable, defense counsel

asked them as a group and individually a series of questions about their feelings and

beliefs about the death penalty. One of those questions put to each juror individually was

whether there was anything in the juror’s background or experience that would cause the

juror to lean one way or another as to what the penalty should be in a first degree murder

case. Putting that question to Dennis Dancy produced the following exchange:

                 A. I have to say, I have thought about this before.

                 Q. Yes, sir.

                 A. I have some kin people.

                 Q. I am sorry. I didn’t quite hear you.

                 A. I have some kin people.

                 Q. Yes, sir.

                 A. Some cousins that have been convicted of capital murder.

                 Q. Okay.

                 A. And it has been an issue and – you know, I thought about it
       before.

               Q. And I appreciate your bringing that to our attention, Mr.
       Dancy. Do I understand your answer that you have more than one person
       in your family involved in –

                 A. Yeah. Distant cousins.

                 Q. How long ago was that, sir?

                 A. It has probably been 15 years.

                 Q. Was that in North Carolina?

                 A. Yes.

                 Q. Did you participate or attend the trial –
                                                  38



                 A. No.

                 Q. – or trials of these folks?

                 A. No, sir.

                 Q. Is that something that you kept up with through your family?

                 A. Not really. Just knew about it.

                 Q. Okay. I understand. Would there be anything about that
          experience that would spill over into this case for you?

                 A. No.

                 Q. That you can keep that, whatever happened in those cases, I
          know they are difficult for you, I am not going to ask you about those,
          keep that separate from the evidence in this courtroom and the law that
          Judge Doughton will give you?

                 A. Yes.

(1/19/05Tpp. 72-74)

          The prosecution moved to reopen the voir dire of Dennis Dancy on the ground

that these responses showed that he answered incorrectly when asked whether he had any

close friends or relatives who had been a criminal defendant. Over defense objection, the

trial judge granted the prosecution motion to reopen the voir dire of Dennis Dancy,

ruling:

          [I]t appears to the Court that failure to answer that question in a first
          degree murder case involving death or life without parole and a juror later
          telling the defense that he had a relative that has been involved in a capital
          offense is good cause to reopen as that that juror. . . .

          On that basis, as to Mr. Dancy, I am now going to allow reopening as to
          that juror, and you will be allowed to ask further questions in that regard
          because the juror appears not to have answered Mr. Horner when he asked
          him.

(1/19/05Tpp. 93-94; App. 16-17)
                                             39


       Although this is a closer case than that of Jason Brown, the record does not show

that Dennis Darcy gave an incorrect answer when asked questions by the prosecutor. The

question asked by the prosecutor did not relate to all relatives, no matter how distant the

relationship might be. As acknowledged by the prosecutors during the arguments on

reopening, the question put to jurors by the prosecutor went only to “close family

members or friends.” (1/19/05Tpp. 97; App 20) The prosecutor never inquired about

distant cousins. The prosecutor never inquired of any juror about whether they had ever

thought about the death sentence as an appropriate penalty in any other case. The

answers given by Dennis Darcy during the defense voir dire make it clear that he did not

regard his distant cousins as close relatives. He did not attend or even keep up with the

proceedings relating to his distant cousins, it was something that he merely knew about.

       Here too, the problem was simply that the prosecutor wished, after he had passed

Dennis Dancy as acceptable, that he had asked different or broader questions. With

respect to Dennis Dancy as well, it was error for the trial court to grant the State’s motion

to reopen the voir dire.

       Whether the trial judge erred with respect to one of both of the jurors where the

State was permitted to reopen voir dire, the error requires that Mr. Goss be granted a new

trial. The error altered the make up of the jury in a manner which reasonably could have

affected the outcome in the guilt-innocence phase of the trial where the evidence from

mental health experts was sharply conflicting on whether Mr. Goss could and had formed

the specific intent required for both premeditated murder and first degree burglary. The

error reasonably could have affected the outcome in the penalty phase of the trial where
                                              40


individual jurors judgments about finding and weighing mitigating circumstances plays a

critical role in the penalty phase verdict.

III.    THE CONCESSION IN CLOSING ARGUMENT THAT MR. GOSS’
        CONFESSION PROVED HE WAS GUILTY OF FIRST DEGREE
        MURDER, AFTER MR. GOSS CONSENTED ONLY TO A CONCESSION
        OF GUILT OF SECOND DEGREE MURDER, WAS A PER SE
        VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL
        RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND DUE
        PROCESS OF LAW.

        Assignment of Error No. 17, Rp. 177
              2/2/05Tp. 42, lines 2-8

        From early in the proceedings, the trial court made a record of what concessions

Mr. Goss had agreed that his attorneys could make about his guilt. Mr. Goss agreed that

his attorneys could admit that he was the one who killed Debbie Veler and that he was

guilty only of second degree murder.

        Contrary to Mr. Goss’ agreement about what concessions were authorized, his

trial counsel, after arguing in closing that Mr. Goss’ confession was an accurate account

of the events surrounding the killing of Debbie Veler, said that the confession proved his

guilt of first degree murder. This concession in closing was a per se violation of Mr.

Goss’ right to effective assistance of counsel under this Court’s decision in State v.

Harbison, 315 N.C. 474, 238 S.E.2d 449 (1997), cert. denied, 476 U.S. 1123 (1986).

        A.      Standard of Review.

        This Court has refused to rule on an assignment claiming a violation of the rule

established in Haribson when the record is silent about what a criminal defendant did or

did not consent to concerning concessions of guilt by his trial counsel. State v. House,

340 N.C. 187, 196-197, 456 S.E.2d 292, 297 (1995). When, as in this case, the record

shows what concessions the defendant consented to having his counsel make, the issue of
                                            41


whether statements by his counsel violated the rule in Haribson is a question of law,

determined by this Court de novo on appeal. State v. Campbell, 359 N.C. 644, 671

S.E.2d 1 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1773, 164 L.Ed.2d 523 (2006)

(statements of counsel not a concession of guilt); State v. Mathews, 358 N.C. 102, 591

S.E.2d 535 (2004) (counsel conceded guilt without consent of defendant).

       B.      Record of Defendant’s Agreement to Concessions by Counsel.

       In keeping with this Court’s admonishments, the trial judge made a record of what

concessions Mr. Goss had authorized his trial counsel to make when speaking to the jury.

The issue first came up during the hearing of motions on the first day of the trial.

Defense counsel stated to the trial judge that he intended to admit that Mr. Goss had

committed the acts which killed Debbie Veler, would offer evidence of diminished

capacity and that the defense theory was that Mr. Goss should be found guilty of second

degree murder and not guilty of first degree murder. The trial judge questioned Mr. Goss

about this defense strategy. Mr. Goss said he agreed with that strategy, that he thought it

was in his best interests, that he understood that he could be found guilty of second

degree murder and that he understood that a conviction of second degree murder would

carry mandatory imprisonment as a sentence. (1/18/05Tpp. 16-23)

       The trial judge returned to the issue later that same morning, just before the jury

venire was called into the courtroom. The trial judge advised Mr. Goss that the trial court

would have to determine whether the evidence presented was sufficient to require an

instruction on diminished capacity and was sufficient to support the submission of second

degree murder to the jury as a possible verdict and that it was possible that neither

diminished capacity or second degree murder would be submitted to the jury. After a
                                            42


recess to allow Mr. Goss to consult with counsel about what the trial judge said, he was

questioned again by the trial judge. He said that he understood the possibility that second

degree murder might not be submitted to the jury and still agreed to the defense strategy

that his attorneys would tell the jury from the outset of the trial that he was guilty of

second degree murder and to start talking about diminished capacity. (1/18/05Tpp. 38-

44)

       When jury selection had progressed to the point where only one more juror and

the alternates had to be seated, the trial judge said he intended to question Mr. Goss once

more, prior to opening statements where defense counsel planned to tell the jury of the

concession of Mr. Goss to guilt of second degree murder, to make certain that he

understood that there could be serious consequences if such a statement was made in

opening and it later turned out that there was not sufficient evidence to submit it to the

jury. (1/20/05Tpp. 81-84)

       At the conclusion of the jury selection, defense counsel again told the trial judge

that the defense intended to admit Mr. Goss’ guilt of second degree murder in the

opening statement. The trial judge addressed Mr. Goss, advising him again that the

decision about instructing the jury on diminished capacity and on second degree murder

would not be made until the conclusion of the evidence, and that an admission by defense

counsel in opening statement conceding his guilt of second degree murder could have

serious consequences if the court later decided not to submit it to the jury. Mr. Goss

again stated his understanding of, and agreement to, the defense strategy to admit guilt of

second degree murder and to do so in opening statement. (1/21/05Tpp. 121-123) In the

opening statement, defense counsel did as announced, admitted that Mr. Goss killed
                                              43


Debbie Veler by stabbing her repeatedly, discussed the evidence the defense intended to

offer about the effects that the mental disorders and the consumption of alcohol had on

Mr. Goss’ ability to form the specific intent to commit first degree murder, admitted that

he committed murder, but not first degree, and said that justice would be a conviction for

second degree murder. (1/21/05Tpp. 138-143)

       The record is abundantly clear in this case that Mr. Goss authorized his trial

counsel to concede his guilt of second degree murder, but not of first degree murder.

       C.      The Harbison Rule.

       In State v. Harbison, the defendant maintained throughout the trial that he killed

the victim in self-defense and his court-appointed counsel maintained that defense in

cross-examination of the State’s witness and in the presentation of defense evidence. Co-

counsel argued for acquittal in closing argument.          The defendant’s court-appointed

counsel then argued in closing that he did not think the defendant should be found not

guilty, but should be found guilty of manslaughter rather than first degree murder. This

argument was made without the consent of the defendant. The jury found him guilty of

second degree murder. This Court held that the concession of guilt was a matter that

could only be done with the knowing and voluntary consent of the defendant personally

and that such a concession by counsel without the express consent of the defendant was a

per se violation of the right to counsel that required a new trial.

       Harbison was followed by this Court in State v. Matthews, supra. In that case,

the record showed that the defendant discussed with trial counsel and approved a strategy

to concede that the defendant was accountable for the death of the victim and that he was

guilty of voluntary manslaughter. At the close of the evidence, the trial judge decided that
                                              44


the evidence did not support voluntary manslaughter and instructed the jury only on first

degree and second degree murder. In closing argument, one of the defendant’s trial

attorneys argued that the defendant was guilty of something and, when the jury looked at

the evidence, they were going to find that he was guilty of second degree murder. Trial

counsel never told the defendant he was going to concede guilt to second degree murder

in closing argument. The jury returned a verdict finding the defendant guilty of first

degree murder and returned a penalty phase verdict recommending a sentenced of death.

Because the concession of guilt of second degree murder was made without the

defendant’s consent, this Court held that trial counsel committed ineffective assistance of

counsel per se and granted him a new trial.

       D.      Trial Counsel’s Closing Argument.

       The verdict form submitted to the jury at the close of evidence in the guilt-

innocence phase of the trial did include second degree murder as a possible verdict and

the jury was instructed on diminished capacity. First degree murder was submitted to the

jury on two theories, both premeditation and deliberation and felony murder with first

degree burglary and armed robbery as the underlying felonies. (2/2/05Tpp. 93-107)

       Mr. Goss’ trial counsel began the closing argument by reminding the jury that the

defense had told the jury in opening statement that Mr. Goss had killed Debbie Veler and

argued that, for a conviction of first degree murder, the State was required to prove that

Mr. Goss had the specific intent to kill formed after premeditation and deliberation either

on the theory of premeditation and deliberation or on the theory of felony murder based

on the commission of a burglary. (2/2/05Tpp. 24-28) Defense counsel then turned to the

theory of the facts put forth by the State in opening that, contrary to the version of the
                                           45


events in Mr. Goss’ confession, the killing actually took place when Debbie Veler

surprised him as he was breaking into her house. Defense counsel argued at length why

the jury should conclude that the events occurred as Mr. Goss said they did in his

confession. (2/2/05Tpp. 28-42) In making this argument, defense counsel argued:

              His statement alone guarantees he’ll serve a substantial amount of
       time in prison and face the terrible consequences of a first degree murder
       conviction. That also is a factor you must consider. That alone is a reason
       to accept that the tragic series of events in this case happened just as
       Christopher Goss said.

(2/2/05Tp. 42) (emphasis added).      The argument that Mr. Goss’ confession would

guarantee a conviction for first degree murder is much like the argument in State v.

Matthews that the jury was going to find Matthews guilty of second degree murder when

they looked at the evidence which this Court held to be a concession of guilt. The

prosecutors followed up in their closing arguments to assert the same point, that if the

jury believed that the events occurred as described in Mr. Goss’ confession, that

confession alone established his guilt of first degree murder. (2/2/05Tpp. 60, 73)

       While perhaps careless, the argument by defense counsel in this case that the

defendant’s confession guaranteed that he would be convicted of first degree murder, was

a concession of guilt that Mr. Goss clearly did not consent to. As in Harbison and

Matthews, defense counsel committed ineffective assistance of counsel per se and Mr.

Goss must be given a new trial.

IV.    THE TRIAL COURT ERRED BY FAILING TO INTERVENE EX MERO
       MOTU TO BAR THE PROSECUTOR’S ARGUMENT IN CLOSING THAT
       MR. GOSS’ ALLEGED EFFORT TO ELIMIATE ROB WILLIS AS A
       WITNESS PROVED THAT HE KILLED DEBBIE VELER TO
       ELIMINATE HER AS A WITNESS.

       Assignment of Error No.19, Rp. 178
             2/2/05Tp. 68, lines 16-25
                                             46



       In closing, as part of the argument urging the jury to find that Mr. Goss had the

premeditated and deliberated intent to kill Debbie Goss, the prosecution referred to

evidence that Mr. Goss assaulted Rob Willis in jail after Rob Willis had reported to

police about things that Willis claimed he had heard Mr. Goss say in jail. This evidence

was admitted for a limited purpose, initially as evidence of consciousness of guilt and

later, additionally as part of the information on which the State’s mental health expert

relied for his opinions. It was used in argument for quite a different purpose, as evidence

of bad character, asking the jury to conclude that Mr. Goss killed Debbie Veler for the

purpose of eliminating a witness because the assault on Rob Willis, a potential witness,

showed he was the kind of person who would kill to eliminate a witness.

       The argument was clearly and grossly improper. The failure of the trial court to

intervene ex mero motu to instruct the jury that it was improper and to disregard it was

error prejudicial in both the guilt-innocence phase and the penalty phase of the trial.

       A.      Standard of Review.

       The standard of review for complaints about prosecution closing arguments when

there was no objection from defense counsel was set out by this Court in State v. Jones,

355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).

           The standard of review for assessing alleged improper closing
       arguments that fail to provoke timely objection from opposing counsel is
       whether the remarks were so grossly improper that the trial court
       committed reversible error by failing to intervene ex mero motu. State v.
       Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528
       U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999). In other words, the
       reviewing court must determine whether the argument in question strayed
       far enough from the parameters of propriety that the trial court, in order to
       protect the rights of the parties and the sanctity of the proceedings, should
       have intervened on its own accord and: (1) precluded other similar
                                            47


       remarks from the offending attorney; and/or (2) instructed the jury to
       disregard the improper comments already made.
       B.      Evidence Admitted for Limited Purposes.

       Rob Willis testified as a State’s witness. In October 2003, Willis was confined in

the Ashe County Jail awaiting transfer to the Department of Corrections on a sentence of

60-72 months on convictions of three counts of felony larceny. On 16 October Sheriff’s

Detective Bucky Absher asked Willis to provide information about his cell mates.

Beginning on that date, Willis reported to Detective Absher things that he claimed Mr.

Goss had said. On 16 October, Willis told Detective Absher that there was a newspaper

in the cell containing an article asking for information about the killing of Debbie Veler

and that Mr. Goss said it happened right beside his house, described the neighborhood

and said that Veler had been stabbed multiple times. Later that day, and on 22 October,

Willis reported to Detective Absher that Mr. Goss was trying to raise the $150.00 he

needed for bail to be released from jail and talked about going to Mexico; that Mr. Goss

said that he got the cut on his arm when the knife slipped; and that, when Willis told Mr.

Goss that it would take probable cause to get an indictment for murder, Mr. Goss pushed

up his sleeve to expose the cut and asked if that was enough for probable cause. On 29

October, Willis reported to Detective Absher about statements made by Mr. Goss

describing the events that occurred when he killed Debbie Veler. (1/24/05Tpp. 130-133,

136-146, 155-157, 160-163, 166-184, 187-189)

       Over objection, Rob Willis was also allowed to testify about an alleged assault on

him in the jail by Mr. Goss and another inmate, Brian Couch, on 12 July 2004. The trial

court admitted this under the authority of this Court’s decision in State v. Hicks, 333 N.C.

467, 485, 428 S.E.2d 167, 177-178 (1993) as evidence of consciousness of guilt. The
                                           48


prosecutor said it was being offered only for this limited purpose. (1/24/05Tpp. 84-90)

Rob Willis had been brought back to the Ashe County Jail from the Department of

Corrections in July 2004 on a writ for the purpose of testifying in yet another case. He

testified that, on 12 July 2004, he was in the TV room, that Brian Crouch was also in that

room, and that the TV room was separated from the cell where Mr. Goss was being held

by a door with a plexiglass window. Willis testified that just prior to lights out, Brian

Crouch started punching Willis in the nose and face and that Mr. Goss shouted his name

and said, “That’s what you get you snitching SOB.” Willis testified that Mr. Goss broke

the window in the door, came through the opening, and jumped on him and started to try

to choke him. Willis testified that he threw Mr. Goss to the floor and they wrestled until

they both agreed to stop fighting when two jailers intervened. (1/24/05Tpp. 149-154)

Later, the trial court allowed the State to present testimony about the alleged assault on

Willis in cross-examination of Dr. Hilkey, the defense mental health expert, and in the

direct examination of Dr. Brown, the State’s mental health expert, for the additional

limited purpose of showing information on which the experts based their opinions.

(1/31/05Tpp. 162-182, 187-188; 2/1/05Tpp. 13-15, 16, 18,-29, 31-32, 34)

       C.      Prosecution Closing Argument.

       In closing arguments, the prosecutor referred to the assault on Rob Willis in the

jail, but argued it for purposes beyond the limited ones for which it was tendered and

found admissible.

       During the closing argument of Assistant District Attorney Graham Green, he

addressed the evidence that he contended showed premeditation and deliberation.

(2/2/05Tpp. 67-69) One of his contentions was that Mr. Goss killed Debbie Veler to
                                            49


prevent her from being a witness against him. During that portion of his argument, he

said:

                I want to touch on another thing with regard to eliminating Miss
        [sic] Veler who was a witness. She – he – he thought that, you know, he
        had assaulted her in a very bad way, and when he came back, it would be
        the State’s contention that he did that for the purpose of eliminating her
        ability to testify against him, to put him back in jail. You know, people
        tend to do things repeatedly. He, basically, attempted to do the same thing
        by eliminating a witness with regard to Rob Willis in the jail. That is Rob
        Willis, he knew, was going to testify against him, perhaps. And what did
        he do with regard to Rob Willis?

(2/2/05Tpp. 68-69)

        The statement that “people tend to do things repeatedly” and the following

reference to the assault on Rob Willis who might be a witness was made to convince the

jury that Mr. Goss killed Debbie Veler to prevent her from testifying by treating the

alleged assault on Willis as evidence of bad character. Rule 404(a), N.C.R. Evid.,

explicitly bars evidence of a person’s character trait for the purpose of showing he acted

in conformity with it on a particular occasion. Arguing that the jury should treated the

alleged assault on Willis as bad character evidence was clearly improper because it

materially misstated the evidence which was admitted only for other, limited purposes.

        This Court noted the impropriety of a prosecution argument asking the jury to

treat evidence of prior bad acts or crimes to show a defendant is a person of bad character

in State v. Tucker, 317 N.C. 532, 543, 346 S.E.2d 417, 423 (1986). In Tucker, the

defendant had been convicted of first degree rape, first degree sexual offense and first

degree kidnapping. When the defendant testified, the State cross-examined him about his

prior convictions. He admitted he had been convicted of auto theft, escape and

kidnapping by force and with a razor. In closing arguments, the prosecutor argued that
                                           50


the defendant’s prior convictions showed that he was violent, did not respect authority

because he escaped, did not respect property, because he stole, had kidnapped someone

before with a razor and consequently was the kind of person who would commit these

crimes, interspersed with comments about whether the jury could believe someone with

those convictions. This Court held:

       On appeal, defendant argues the prosecutor’s jury argument materially misstated
       the evidence and urged the jury to consider as substantive evidence testimony
       admitted only for impeachment purposes. . . . Defendant’s argument is well
       taken, as the impropriety of the prosecutor’s argument is apparent. The evidence
       of defendant’s past convictions was offered and admitted solely to impeach
       defendant’s credibility. This was the only legitimate purpose for which the
       evidence was admissible. Yet the prosecutor went far beyond using this evidence
       for purposes of challenging defendant’s credibility. He used defendant’s prior
       convictions primarily to characterize him as a woman abuser, a person of violence
       who understands nothing but force, and one who has no respect for authority or
       the property of others. Although the prosecutor occasionally interjected “Can you
       believe this man,” the argument’s main thrust is to show defendant is a bad man
       of a violent, criminal nature and clearly more likely to be guilty of the crime
       charged. The prosecutor alluded to the fact that defendant was charged with
       kidnapping by the same method as before and stated defendant did it this time
       because he had done it before. He concluded with “That is the life of Paul
       Michael Tucker.” Thus the prosecutor improperly argued that evidence
       admissible only to impeach defendant’s credibility should be considered as
       substantive evidence that he committed the crime of which he is charged herein.

       ***

       Although it was proper to cross-examine defendant concerning his prior
       convictions on the question of his credibility, these convictions were not
       admissible as substantive evidence tending to prove his guilt. It was error for the
       trial court to permit the prosecutor to argue as if they were.

Tucker, 317 N.C. at 543-45, 346 S.E.2d at 423-424.

       In this case, the evidence of the alleged assault of Rob Willis was admitted for

two purposes, as part of the basis for expert opinion, an admission which does not allow

the jury to treat it as substantive evidence, and as evidence of consciousness of guilt

under State v. Hicks, supra. Flight and making false and contradictory statements to the
                                             51


police are other forms of evidence that have been held admissible to show consciousness

of guilt. Whatever the form, evidence of consciousness of guilt can be considered with

other facts and circumstances in determining guilt, but may not be considered as evidence

tending to show premeditation and deliberation. State v. Myers, 309 N.C. 78, 87, 305

S.E.2d 506, 511-512 (1983). The argument of the prosecutor was clearly improper. The

prosecutor here explicitly argued that Mr. Goss’ character was such that rather than face

jail, he premeditatedly and deliberately eliminated those who tried to put him there.

       The record in this case shows that the argument was grossly improper, “strayed

far enough from the bounds of propriety that the trial court, in order to protect the rights

of the parties and the sanctity of the proceedings should have intervened on its own

accord.” State v. Jones, supra. The last order of business on 2 February 2005 before the

jury was brought in for the closing arguments in the guilt phase was a discussion of the

evidence of the alleged assault on Rob Willis and the form of the instruction to the jury

about the two limited purposes, and no other, for which that evidence could be

considered. (2/2/05Tpp.4-20) Having sought the admission of that evidence for two

limited purposes and after participating in the discussion of the instruction that would be

given that the evidence could not be considered for any purpose other than for those two

purposes, the prosecutor was clearly on notice that the argument made, asking the jury to

consider the evidence for other purposes, was clearly outside the bounds.

       It is also clear that, in this case, the improper argument was prejudicial to the

outcome in both the guilt-innocence phase of the trial and in the penalty phase of the trial.

       Whether Mr. Goss formed the specific intent to kill Debbie Veler after

premeditation and deliberation was the central issue in conflict in the guilt-innocence
                                           52


phase of the trial. The evidence from the defense and prosecution mental health experts

was in sharp contrast. The evidence of the alleged assault on Rob Willis was admitted

only as non-substantive evidence as part of the data underlying the opinions of the

experts and to show consciousness of guilt, but not as substantive evidence of bad

character or as evidence tending to show premeditation and deliberation. There is a

reasonable possibility that, if the grossly improper argument had not been made, a

different result would have been reached in the guilt/innocence phase.

       While the jury was instructed that they could find Mr. Goss guilty under the

theory of premeditated and deliberated murder and/or felony murder, the improper

argument affects both theories in this case. The impact on the theory of premeditation

and deliberation is explained above, i.e. the evidence from Rob Willis was not admissible

to support premeditation and deliberation but was argued for that purpose. The felony

murder charge was based on two possible underlying felonies, first degree burglary

and/or armed robbery. The jury was instructed that in order to find Mr. Goss guilty of

felony murder based on first degree burglary as the underlying felony, the jury must find

that Mr. Goss entered the home with the intent to commit premeditated and deliberated

murder. The jury was required to find that the murder was premeditated and deliberated.

(2/2/05Tpp. 98-104, 119-126) The theory of felony murder with the underlying felony of

armed robbery was based on some evidence that at some point after Ms. Veler was dead,

Mr. Goss found $17.00 and took it.

       There is no way of knowing what the jury found – which theory of felony murder.

See e.g. State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987). The verdict

form did not specify. (Rp. 120) While Mr. Goss was charged with first degree burglary
                                             53


and robbery with a dangerous weapon, he was not tried on either of those offenses. There

is no jury finding of his guilt of either of those offenses. It is apparent that the jury had

some problems with the felony murder theory.             They came back and requested

reinstruction. (2/2/05Tpp. 116, 119) The evidence of robbery with a dangerous weapon

was weak at best. The improper closing argument went directly to premeditation and

deliberation which was a highly disputed element of both first degree murder based on

premeditation and deliberation and felony murder based on burglary with a premeditated

murder as the “intent” for the burglary. It requires a new trial.

       In the penalty phase of the trial, the impact of the error was even more direct and

more prejudicial. Killing Debbie Veler to prevent her from testifying as a witness was

one of only two aggravating circumstances on which the jury based its death verdict. The

prosecutor argued that this evidence relating to Willis was substantive proof that Mr.

Goss killed Ms. Veler to prevent her from calling the police or testifying against him.

The evidence was not admitted for this purpose. It was not admitted as substantive

evidence to prove this aggravating circumstance.

       But for this improper argument, there is a reasonable probability that the jury’s

verdict in finding that this aggravating circumstance was proven, would have been

different. But even if the jury would still have found this aggravating circumstance, the

weight given by any juror is likely to have been different. The other evidence that the

motive for the killing was to eliminate a witness was highly circumstantial. Mr. Goss’

statement was that he was out of control and did not know why he was doing what he was

doing. There was substantial mental health evidence to support his statements and to

support the mitigating circumstances.          There was only one other aggravating
                                              54


circumstance found. Because the weighing of aggravating and mitigating circumstances

is a matter that is affected by the individual juror’s personal opinions about how the two

weighing issues come out, along with the weight to be given to a murder based on

perhaps felony murder only, and perhaps where that felony is a taking of $17 after Ms.

Veler was already dead, as an afterthought, there is more than a reasonable possibility

that, if the grossly improper argument had not been made, a different result would have

been reached in the penalty phase of the trial.

       As a result of the improper closing argument, Mr. Goss is entitled to a new trial

or, at a minimum, a new sentencing hearing.

                                   PRESERVATION ISSUES3

V.     INSTRUCTING THE JURY THAT THEY HAD TO UNANIMOUSLY FIND
       THAT THE AGGRAVATING CIRCUMSTANCES WERE NOT
       SUFFICIENTLY SUBSTANTIAL WHEN CONSIDERED WITH THE
       MITIGATING CIRCUMSTANCES TO CALL FOR THE IMPOSITION OF
       THE DEATH PENALTY BEFORE THEY COULD ANSWER ISSUE No. 4
       NO AND SENTENCE MR. GOSS TO LIFE IMPRISONMENT WITHOUT
       PAROLE WAS ERROR OR PLAIN ERROR WHICH DEPRIVED HIM OF
       HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE
       PROCESS OF LAW AND TO BE FREE FROM CRUEL AND UNUSUAL
       PUNISHMENT.

       Assignment of Error No. 23, Rp. 178
             2/8/05Tp. 118 (Rp. 131), line 8, through 2/8/05Tp. 119 (Rp. 132) line 19

       When instructing the jury in the penalty phase on Issue 4 on the sentencing verdict

form, the trial judge directed the jury that they had to unanimously fail to find the

aggravating circumstances sufficiently substantial before they could answer this issue no


 3
    The following arguments concern issues this Court has previously decided adversely to
the defendant's position. The issues are raised here, briefly when possible, to give this Court
an opportunity to re-examine its prior holdings and, if this Court declines to do so, to
preserve the issues for later review by the United States Supreme Court or a lower federal
court.
                                               55


and sentence Mr. Goss to life imprisonment without parole. (2/5/05Tpp. 118-119; Rpp.

131-132) It is Mr. Goss' position that this requirement of unanimity for a life verdict

unconstitutionally limited his ability to obtain a life sentence from the jury.

        Mr. Goss is aware that this Court has ruled adversely to him on this issue in its prior

decisions. State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995), cert. denied, 517 U.S.

1110 (1996). Mr. Goss asks this Court to reconsider and overrule its decisions on this issue,

vacate his death sentence and grant him a new trial.

VI.     THE TRIAL COURT'S INSTRUCTION TO THE JURY IN THE PENALTY
        PHASE THAT IT HAD THE "DUTY" TO IMPOSE THE DEATH
        PENALTY IF IT FOUND THE MITIGATING CIRCUMSTANCES FAILED
        TO OUTWEIGH THE AGGRAVATING CIRCUMSTANCES AND THAT
        THE AGGRAVATING CIRCUMSTANCES WERE SUFFICIENTLY
        SUBSTANTIAL TO CALL FOR THE DEATH PENALTY WHEN
        CONSIDERED WITH THE MITIGATING CIRCUMSTANCES DEPRIVED
        MR. GOSS OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS
        TO DUE PROCESS OF LAW AND TO BE FREE FROM CRUEL AND
        UNUSUAL PUNISHMENT.

        Assignment of Error No. 24, Rp. 179
              2/4/05Tp. 120 (Rp. 154), lines 14-16

        In the charge to the jury, the trial court instructed that it was the jury's duty to

recommend Mr. Goss be sentenced to death if they found that the mitigating circumstances

were insufficient to outweigh the aggravating circumstances and that the aggravating

circumstances, when considered with the mitigating circumstances, were sufficiently

substantial to call for the death penalty. (2/5/05Tp. 120; Rp. 154) It is Mr. Goss' position

that the instruction to the jury that they were required to impose a death sentence if they

answered "yes" to these two issues was error or plain error which violated his state and

federal constitutional rights to due process of law and to be free from cruel and unusual

punishment.
                                             56


       Mr. Goss is aware that the prior decisions of this court are adverse to the claims that

he makes here. See, e.g., State v. Skipper, 337 N.C. 1, 57, 446 S.E.2d 252 (1994), cert.

denied, 513 U.S. 1134 (1995); State v. [William] Jones [II], 336 N.C. 229, 261, 443 S.E.2d

48, cert. denied, 513 U.S. 1003 (1994); State v. [Dwight] Robinson [II], 336 N.C. 78, 131,

443 S.E.2d 306 (1994), cert. denied, 513 U.S. 1089 (1995). Mr. Goss asks this Court to

reconsider and overrule its decisions on this issue, vacate Defendant's death sentence and

grant him a new sentencing trial.

VII.   THE DEFINITION OF MITIGATING CIRCUMSTANCES IN THE TRIAL
       COURT'S CHARGE TO THE JURY WAS ERROR OR PLAIN ERROR
       WHICH DEPRIVED MR. GOSS OF HIS STATE AND FEDERAL
       CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND TO BE
       FREE FROM CRUEL AND UNUSUAL PUNISHMENT.

       Assignment of Error No. 25, Rp. 179
             2/5/05Tp. 98 (Rp. 155), lines 8-22

       The trial court defined mitigating circumstances in its charge to the jury as a fact or

group of facts which may be considered as "extenuating or reducing the moral culpability of

the killing or making it less deserving of extreme punishment than other first degree

murders." (Tp. 98; Rp. 155) (emphasis added). It is Mr. Goss's position that this definition

of a mitigating circumstance unconstitutionally limited the jury from considering facts as

mitigation circumstances which might be considered to make Defendant less deserving of a

death sentence even if they would not make the murder less deserving of a death sentence.

The charge as given deprived Mr. Goss of his state and federal constitutional rights to due

process of law and to be free from cruel and unusual punishment.

       Mr. Goss is aware that this Court has rejected similar arguments. State v. Conaway,

339 N.C. 487, 533-534, 453 S.E.2d 824, cert. denied, 516 U.S. 884 (1995); State v. [John]

Jones, 339 N.C. 114, 163, 451 S.E.2d 826 (1994), cert. denied, 515 U.S. 1169 (1995); State
                                               57


v. Skipper, 337 N.C. 1, 52-53, 446 S.E.2d 252 (1994), cert. denied, 513 U.S. 1134 (1995);

State v. [Dwight] Robinson [II], 336 N.C. 78, 122-123, 443 S.E.2d 306 (1994), cert. denied,

513 U.S. 1089 (1995). Mr. Goss requests that this Court reconsider its rulings and, in light

of the evidence in this case, hold that the death sentence predicated in part on the jury's

refusal to find a number of circumstances which were supported by substantial evidence

based on the instruction given, is constitutionally invalid.

                                  PROPORTIONALITY ISSUES

VIII. THE STANDARDS SET BY THE SUPREME COURT OF NORTH
      CAROLINA FOR ITS PROPORTIONALITY REVIEW MANDATED BY
      N.C.G.S. § 15A-2000(D)(2) ARE VAGUE AND ARBITRARY TO THE
      EXTENT THAT THEY DEPRIVE MR. GOSS OF HIS CONSTITUTIONAL
      RIGHTS TO NOTICE, EFFECTIVE ASSISTANCE OF COUNSEL, DUE
      PROCESS OF LAW AND TO BE FREE FROM CRUEL AND UNUSUAL
      PUNISHMENT.

        Assignments of Error Nos. 26 and 27, Rp. 179
              Death Judgment, Rp. 162

        As enacted in 1977, N.C.G.S. § 15A-2000(d) provides for an automatic review of

every capital conviction and death sentence by this Court. As part of that review, N.C.G.S §

15A-2000(d)(2) provides in relevant part:

        The sentence of death shall be overturned and a sentence of life
        imprisonment imposed in lieu thereof by the Supreme Court upon a finding .
        . . that the sentence of death is excessive or disproportionate to the penalty
        imposed in similar cases, considering both the crime and the defendant. The
        Supreme Court may suspend consideration of death penalty cases until such
        time as the court determines it is prepared to make the comparisons required
        under the provisions of this section.

Although the Eighth Amendment to the United States Constitution does not mandate this

kind of appellate proportionality comparison of the sentences imposed in all capital cases,

Pulley v. Harris, 465 U.S. 37 (1984), the United States Supreme Court has recognized that

this kind of proportionality review serves an important purpose in ensuring that a defendant
                                               58


will not be "sentenced to die by the actions of an aberrant jury." Gregg v. Georgia, 428 U.S.

153, 206 (1976).

        Although not constitutionally mandated, when a state adopts such a procedure by

statute, the provision for this kind of proportionality review creates a liberty interest which is

entitled to procedural due process limitations against arbitrary application. See Board of

Pardons v. Allen, 482 U.S. 369 (1987) (although there is no constitutional right to parole,

statute which provides that a prisoner "shall" be released on parole unless certain conditions

are met creates a liberty interest which is entitled to procedural due process protections;

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) (same). See also Hewitt v. Helms,

459 U.S. 460 (1983) (liberty interest of incarcerated prisoner in not being transferred from

general population to administrative segregation entitled to procedural due process

protections); Hicks v. Oklahoma, 447 U.S. 343 (1980) (although there is no constitutional

right to have the trial jury determine sentence, such a right given by statute creates a liberty

interest which cannot be arbitrarily denied by an appellate ruling that the jury would have

imposed the same sentence even if the erroneous application of a habitual sentencing

provision had not been applied); Vitek v. Jones, 445 U.S. 480 (1980) (liberty interest of

incarcerated prisoner in not being transferred from prison to mental hospital entitled to

procedural due process protections); Wolff v. McDonnell, 418 U.S. 539 (1974) (state statute

providing for good time credits creates a liberty interest which prevents their deprivation

without certain procedural due process limitations).

        In State v. D. Williams, 308 N.C. 47, 49, 301 S.E.2d 335 (1983) this Court

announced for the first time that it would compare a death sentence on appeal to the pool of

cases consisting of
                                              59


       all cases arising since the effective date of our capital punishment statute, 1
       June 1977, which have been tried as capital cases and reviewed on direct
       appeal by this Court in which the jury recommended death or life
       imprisonment or in which the trial court imposed life imprisonment after the
       jury's failure to agree upon a sentencing recommendation within a reasonable
       period of time.

       At one point, the Court said that the life cases in the proportionality pool it

considered were limited to those which have been affirmed by the Court and found to be

free from error in both the guilt/innocence phase and the penalty phase. State v. Jackson,

309 N.C. 26, 45, 305 S.E.2d 703 (1983). In State v. Bacon [II], 337 N.C. 66, 446 S.E.2d

542 (1994), cert. denied, 513 U.S. 1159 (1995), this court announced a change in the pool to

deal with death-sentenced defendants who obtained post-conviction relief.

       Because the "proportionality pool" is limited to cases involving first-degree
       murder convictions, a post-conviction proceeding which holds that the State
       may not prosecute the defendant for first-degree murder or results in a retrial
       at which the defendant is acquitted or found guilty of a lesser included
       offense results in removing the case from the "pool." When a post-
       conviction proceeding results in a new capital trial or sentencing proceeding,
       which in turn, results in a life sentence for a "death-eligible" defendant, the
       case is treated as a "life" case for purposes of proportionality review. The
       case of a defendant sentenced to life imprisonment at a resentencing
       proceeding ordered in a post-conviction proceeding is similarly treated.
       Finally, the case of a defendant who is either convicted of first-degree
       murder and sentenced to death at a new trial or sentenced to death in a
       resentencing proceeding ordered in a post-conviction proceeding, which
       sentence is subsequently affirmed by this Court, is treated as a "death-
       affirmed" case.

Bacon, 337 N.C. at 107, 446 S.E.2d at 564.4

       This Court has said that its task in proportionality review is to compare this case

with other cases in the pool which are roughly similar with regard to the crime and the
 4
    Although Bacon refers to cases where a death sentence was affected by a later grant of
relief in post-conviction, the Court also held that the pool of life cases included some where
relief was granted on direct appeal, those where the Court found no error in the finding of
guilt of first degree murder, found error in the penalty phase and the defendant was
sentenced to life at the resentencing proceeding. Id. n.6.
                                              60


defendant. State v. Young, 312 N.C. 669, 687, 325 S.E.2d 181 (1985); State v. Lawson, 310

N.C. 632, 314 S.E.2d 493 (1984). The Court has further explained the comparison process:

       If, after making such a comparison, we find that juries have consistently
       been returning death sentences in the similar cases, then we will have a
       strong basis for concluding that a death sentence in the case under review is
       not excessive or disproportionate. On the other hand if we find that juries
       have consistently been returning life sentences in the similar cases, we will
       have a strong basis for concluding that a death sentence in the case under
       review is excessive or disproportionate.

State v. Young, 312 N.C. at 687, quoting from State v. Lawson, 310 N.C. at 648.

       Mr. Goss respectfully contends that based on the pool of cases established by this

Court in Williams, Jackson and Bacon, this Court cannot perform its proportionality review

with the procedure that has been established. In 1998, Rule 4(d) of the Rules of Appellate

Procedure was changed to require that all capitally tried cases that resulted in a sentence of

life be appealed to the Court of Appeals, rather than the Supreme Court. Consequently,

there are no life cases in the pool where the jury considered the aggravating and mitigating

circumstances and determined that a life sentence was appropriate.5       This severely limits

and skews the pool of cases that this Court considers. This Court cannot conduct the

proportionality review in accordance with its own rules when all of the life cases for the last

9 years are not included in the review. Mr. Goss contends that this violates his State and

Federal constitutional right to due process of law.

       In addition, this Court has gone on to say that a showing that the death sentence

being reviewed is similar to those where juries have consistently imposed life sentences is

not enough:



5
  There are a very small number of life cases since 1998 that have been added to the
pool where this Court or a post-conviction court has granted a new trial or sentencing
hearing and a life sentence was returned.
                                                  61


          "Early in the process of developing our methods for proportionality review,
          we indicated that similarity of cases, no matter how many factors are
          compared . . . [is not] . . . 'the last word on the subject of proportionality'" but
          merely serves as an initial point of inquiry. State v. Green, 336 N.C. 142,
          198, 443 S.E.2d 14, 46-47 (quoting State v. Williams, 308 N.C. 47, 80-81,
          301 S.E.2d 335, 356). The issue of whether the death penalty is
          proportionate in a particular case must rest in part on the experienced
          judgment of the members of this Court, not simply on a mere numerical
          comparison of aggravators, mitigators, and other circumstances.

State v. Skipper, 337 N.C. 1, 63-64, 446 S.E.2d 252 (1994), cert. denied, 513 U.S. 1134

(1995).

          Respectfully, it is the Defendant's position that, in several respects, the manner in

which the Court conducts proportionality review is arbitrary or undefined in a fashion that

allows for, and has led to, the application of different standards to each case.

          In any decision that results in a death sentence, an appellate court, like the trial court

sentencer, must take into consideration all of the mitigating circumstances favoring a life

sentence for the defendant on appeal as well as the aggravating circumstances supporting the

death sentence. Parker v. Dugger, 498 U.S. 308 (1991). There are cases where this Court

appears to have found a death sentence proportional by merely comparing the degree of

aggravation it believes is shown by the evidence to other cases were death was affirmed,

without consideration of the mitigating evidence in the cases. See State v. [William] Jones

[II], 336 N.C. 229, 262-263, 443 S.E.2d 48, cert. denied, 513 U.S. 1003 (1994) (comparing

aggravating circumstances without mention of the four mitigating circumstances found by

jury or even what they were).

          In making the comparison of Defendant's case to the cases in the pool, the Court has

not made clear whether it is acting as a fact finder, making an independent determination of

the aggravation and mitigation in each pool case, or as a court deciding an issue of law by
                                              62


applying facts found by the jury in each pool case. There are some cases where the Court

appears to be acting as a fact finder and others where it appears to be reviewing findings it

concludes or assumes were made by the jury. In order to make appropriate presentation and

argument to the Court, Defendant must first know in which of these manners the Court is

making its judgment.

       If the Court reviews the cases in the pool based on the facts found by the jury in

those cases, the manner in which the Court concludes what facts were found by the jury is

important but undefined. On many factual questions, the verdict is not sufficient to show

what facts the jury found to exist. Cases in the pool include verdicts in the guilt phase which

do not specify the theory of guilt of first degree murder, although both felony and

premeditated murder are adequately proven. There are cases in the pool where the jury did

not specify which mitigating circumstances it found. There are cases in the pool where the

jury indicated that it found the "any other" mitigating circumstance without identifying what

they found mitigating. In addition, there are many life cases in the pool where the jury did

not find an aggravating circumstance clearly established by the evidence because that

aggravating circumstance was not submitted to them.

       If the Court assumes, when considering a life case in the pool with a verdict that

does not specify mitigating circumstances found, that the jury found every mitigating

circumstance submitted, no matter how insignificant the evidence and how unlikely that the

jury actually found it, the Court arbitrarily skews the balance against the Defendant on

appeal. Similarly, if the Court assumes, when considering a life case in the pool with a

verdict that does not specify the theory of conviction for murder that the jury did not find the
                                              63


murder premeditated, no matter how strong the evidence and how likely that the jury

actually found it, the Court arbitrarily skews the balance against the Defendant on appeal.

       This Court has not specified whether, in conducting proportionality review, it has

construed the statute to limit the Court, like the sentencing jury, to consideration of

aggravating circumstances specified in the statute. There are cases where the Court has

referred to matters as aggravating justification for finding proportional the death sentence on

review which are not part of the statutory aggravating circumstances. In some cases, the

Court appears to treat premeditated murder as a more aggravated form of first degree

murder than felony murder; and, in other cases, it appears to treat the two theories as having

equal degrees of culpability. Compare State v. [Harvey] Green [III], 336 N.C. 142, 171-

172 and 184, 443 S.E.2d 14, cert. denied, 513 U.S. 1046 (1994) (premeditated and felony

murder involve equivalent degrees of blameworthiness and lack of premeditation not

mitigating as basis for life rather than death sentence) with State v. [William] Jones [II], 336

N.C. 229, 262-263. 443 S.E.2d 48, cert. denied, 513 U.S. 1003 (1994) (felony murder not

comparable to premeditated murder, felony murder providing basis explaining life rather

than death verdict).

       Finally, this Court's statement in Skipper and other cases, that a showing that all of

the circumstances and factors in the case on appeal are similar to those in cases where juries

have sentenced other defendants to life imprisonment is only the initial point of inquiry and

that the final determination is made on the experienced judgment of the members of the

Court, creates a standard which is both vague and unknowable to the Defendant on appeal.

       Accordingly, Mr. Goss respectfully requests that, if this Court reaches

proportionality review in this case, the Court schedule a hearing for the purpose of
                                               64


presenting proposals for the Court's creation of guidelines for its proportionality review of

death cases and that this Court delay any proportionality review in this case until after it has

announced such standards and Mr. Goss is given an opportunity to deal with the

proportionality issue under such guidelines. In the absence of announcement of such

guidelines, it is the Mr. Goss' position that any proportionality review conducted by the

Court in his case will deprive him of his life and liberty interest in a fair and non-arbitrary

review and that an affirmance of his death sentence will deprive him of his state and federal

constitutional rights to notice, to effective assistance of counsel, to due process of law and to

be free from cruel and unusual punishment.

IX.     THE DEATH SENTENCE WAS IMPOSED UNDER THE INFLUENCE OF
        PASSION, PREJUDICE AND OTHER ARBITRARY FACTORS AND IS
        EXCESSIVE AND DISPROPORTIONATE TO THE PENALTY IMPOSED
        IN OTHER SIMILAR CASES.

        Assignments of Error Nos. 26 and 27, Rp. 179
              Death Judgment, Rp. 162

        If this Court finds no error in the penalty phase which is sufficient to require a new

sentencing hearing, it is obligated by N.C.G.S. §15A-2000(d)(2) to determine whether the

death sentence in this case was imposed under the influence of passion, prejudice or other

arbitrary factors and whether it is "excessive or disproportionate to the penalty imposed in

similar cases considering both the crime and the defendant." If this Court reaches this issue,

Mr. Goss asks that it find the death sentence disproportionate in this case.
                                             65


                                      CONCLUSION

          For all of the reasons stated above, the Defendant, Christopher Edward Goss,

respectfully requests that this Court reverse his conviction and sentence of death and order a

new trial. If that is denied, the Defendant respectfully requests that this Court vacate the

sentence of death and order a new sentencing hearing. If that is denied, the Defendant

respectfully requests that this Court order a hearing on the standards for proportionality

review.

                                       Respectfully submitted,



                                       _________________________________
                                       Ann B. Petersen
                                       Glover & Petersen, P.A.
                                       1506 E. Franklin Street, Suite 100
                                       Chapel Hill, N.C. 27514
                                       (919) 942-6503
                                       Bar No. 10213
                                       ladyheel@juno.com

                                       ATTORNEY FOR DEFENDANT-APPELLANT
                                            66


                 CERTIFICATE OF SERVICE AND FILING BY MAIL

       I hereby certify that the original of the above and foregoing Defendant-Appellant’s

Brief has been filed with the Clerk of the North Carolina Supreme Court by depositing same

in the United States Mail, postage prepaid and address to Ms. Christie Speir Cameron, P.O.

Box 2170, Raleigh, North Carolina, 27602-2170.

       I further certify that a copy of the above and foregoing Defendant-Appellant’s Brief

has been duly served upon counsel for the State, by depositing same in the United States

Mail, postage prepaid and addressed as follows:

Mr. Barry S. McNeill
Special Deputy Attorney General
N.C. Department of Justice
Capital Litigation Section, 5th Floor
P.O. Box 629
Raleigh, N.C. 27602-0629


This the 22nd day of February, 2007.



                                             _________________________________
                                             Ann B. Petersen
                                             Counsel for Defendant-Appellant
                                             67


                                   APPENDIX

ARGUMENT                                          TRANS.        APP.
                                                  PAGE          PAGE

I.   Barring Defendant from Consulting With
     Attorney During Examination by State’s       1/26/05
     Psychiatrist                                  Tpp. 3-15    1-13


II. Allowing the State to Reopen Jury Voir        1/19/05
                                                  Tpp. 91-100   14-23

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:6
posted:9/16/2011
language:English
pages:67