State v. Russell

• Court: Court of Appeals of North Carolina
• Decided: April 15, 2014
• Docket: 13-1308
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1308 NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Buncombe County No. 11 CRS 063119 BUDDY RAY RUSSELL

Appeal by defendant from judgment entered 25 April 2013 by

Judge Sharon Tracey Barrett in Buncombe County Superior Court.

Heard in the Court of Appeals 19 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender John F. Carella, for defendant.

ELMORE, Judge.

On 25 April 2013, a jury found Buddy Ray Russell

(defendant), guilty of robbery with a dangerous weapon. The

trial court sentenced defendant as a prior record level VI

offender to 120-153 months of active imprisonment. Defendant

appeals. After careful consideration, we find no prejudicial

error. -2- I. Facts

On 9 November 2011, defendant entered Capital Bank on

Leicester Highway in Buncombe County, approached a bank teller

at her counter, and handed her a note. The note read, “[i]t is

a stick up. NO! [sic] die [sic] pack . . . all 100.00 or I will

kill. I got a gun. Lay the money out where I can see it now.

Hurry now.” In response, the teller retrieved a $100 bill and

gave it to defendant. He then asked for an additional $100

bill, and the teller handed him the demanded amount. The teller

then “looked at the mirror and saw [defendant] walk out the

door.” She immediately activated the bank’s silent alarm to

notify the police and told a co-worker to lock the doors because

they had “just been robbed.” Officer Kevin Calhoun of the

Buncombe County Sheriff’s Office heard about the robbery through

a radio broadcast by the Sheriff’s Office’s Communications

Division. He obtained a description of the suspect and

encountered defendant, who matched the description, riding his

bicycle on Ben Lippen Road. Since defendant matched the

suspect’s description, he was stopped and taken into custody.

Although defendant was eventually arrested and charged with

robbery with a dangerous weapon, a gun was never found. At

trial, the teller testified that as soon as she read the note, -3- she was concerned for her safety and stated, “the first thing

that just popped in my mind was my daughter’s at school, and I

just thought, ‘[d]on't shoot me in the back.’” Although she

never saw a gun, the teller believed that defendant would have

been able to conceal the gun in his clothes or coat. Defendant

testified and admitted to entering the bank, writing the note,

and obtaining the money. However, defendant stated that he

never possessed a gun when he walked into the bank or at anytime

on 9 November 2011.

II. Analysis

a.) Jury Selection

Defendant first argues that the trial court erred in

overruling his objections to the prosecutor’s statements and

questions to prospective jurors during jury selection.

Specifically, defendant argues that the prosecutor’s “improper

questions prejudiced [him] because they indoctrinated the jury

with a legal theory that would allow him to be convicted of

robbery with a dangerous weapon in the absence of an essential

element of the crime.” Defendant avers that by allowing this

alleged line of improper inquiry, he was denied his

constitutional right to an impartial jury. We disagree. -4- The scope of voir dire questions “rests largely in the

discretion of the trial court. The exercise of such discretion

constitutes reversible error only upon a showing by the

defendant of harmful prejudice and clear abuse of discretion by

the trial court.” State v. Jones, 347 N.C. 193, 203, 491 S.E.2d

641, 647 (1997) (citations omitted). Our review of voir dire

questioning requires that we focus on “the entire record of the

voir dire.” State v. Johnson, 209 N.C. App. 682, 684, 706

S.E.2d 790, 793 (2011) (citation and quotation omitted). The

constitutional right to an impartial jury “contemplates that

each side will be allowed to make inquiry into the ability of

prospective jurors to follow the law. Questions designed to

measure a prospective juror's ability to follow the law are

proper within the context of jury selection voir dire.” Jones,

347 N.C. at 203, 491 S.E.2d at 647 (citation omitted). However:

hypothetical questions so phrased as to be ambiguous and confusing or containing incorrect or inadequate statements of the law are improper and should not be allowed. Counsel may not pose hypothetical questions designed to elicit in advance what the juror's decision will be under a certain state of the evidence or upon a given state of facts.

Id. at 202, 491 S.E.2d at 647 (citation and quotation omitted). -5- In the case at bar, the prosecutor stated, over

defendant’s objection, during voir dire:

[T]he law in North Carolina says that if you threaten the use of a deadly weapon and it is reasonable that the victim believe that, that you can [be] found guilty of armed robbery. . . . [I]f the judge instructs you that in North Carolina you don’t have to have a gun in your possession but if you just threaten the use of one, you can be found guilty of armed robbery, does everybody think they can follow that instruction? Does everybody think they can follow what the judge tells them the law is?

Even if we assume arguendo that 1.) the prosecutor

misstated the relevant law during jury selection and 2.) the

trial court erred in overruling objections to the prosecutor’s

statements to the jury, defendant has failed to show that the

trial court’s alleged error prejudiced him. Before voir dire

began, the trial court told the prospective jurors that

I will instruct you as to all of the law that you are to apply to the evidence in this case. It is your duty to apply the law as I will give it to you, and not as you think the law is, or as you might like it to be. . . . At this point you are not expected to know the law. Counsel should not question you about the law except to ask whether you will accept and follow the law as given by the court.

After defendant objected to the prosecutor’s statements of

law, the trial court reiterated to the jurors: -6- As jurors, you may not let your present opinion or information influence your decision in a case or let it prevent you from rendering any proper verdict required by the facts and the law. The test for qualification for jury service is not the private feelings of a juror, rather it is whether the juror can honestly set aside any such feelings, fairly consider the law and evidence, and impartially determine the issues[.]

A review of the voir dire questioning indicates that in

addition to the two examples above, the trial court made other

reminders to prospective jurors to only follow the trial court’s

instruction of the law, despite what the prosecutor told them.

In addition, an entire reading of the prosecutor’s voir dire

shows that he told the jurors to adhere to the trial court’s

instructions. Moreover, all selected jurors said they would

accept the law as given by the trial court, and proper jury

instructions were given after closing statements. Accordingly,

defendant has failed to show that the prosecutor’s misstatements

of law resulted in harmful prejudice. See Johnson, 209 N.C.

App. at 691, 706 S.E.2d at 796-97 (holding that any error during

voir dire was not prejudicial to defendant when the trial court

subsequently stated the correct law for the jury and asked

jurors if they could follow its instructions).

b.) Excusal of Prospective Juror #6 -7-

Defendant also argues that the trial court’s excusal of

prospective juror #6 deprived defendant of his constitutional

right to an impartial jury because it signaled the trial court’s

endorsement of the prosecutor’s misstatements of law. We

disagree.

“[W]e must defer to the trial court’s judgment as to

whether the prospective juror could impartially follow the law.”

State v. Bowman, 349 N.C. 459, 471, 509 S.E.2d 428, 436 (1998),

cert. denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999). The

trial court’s decision “as to whether this prospective juror’s

beliefs would affect her performance as a juror” will be upheld

on appeal “[a]bsent an abuse of discretion[.]” Id. (citation

omitted).

After the prosecutor told the prospective jurors his

version of the applicable law, he collectively asked them

whether they could follow that instruction on the law.

Prospective juror #6 answered, “No, my conscious [sic] won’t let

me do that. I’m sorry.” The trial court then specifically asked

prospective juror #6:

TRIAL COURT: [A]t the appropriate time, the court will be giving the jury in this case the instructions about what the law is that they are to apply to the facts as the jury finds the facts to be. I want to follow up -8- with you on the issue that was discussed about whether you would be able to set aside your personal views or your personal feelings and follow the law as I give it to you. In light of the reminders that I’ve just read and the question I’m asking, will you be able to set aside your personal views and follow the law as the court gives it to you, or do you think in all honesty you would not be able to do that?

PROSPECTIVE JUROR NUMBER 6: I will do the best I could, but this is a serious thing and you have to live with your conscious [sic] and [sic] I don’t believe that I could -- I don’t believe I could do it. I really don’t. I’ll do my best to, but I don’t think I can.

Again, even if we assume arguendo that the prosecutor

misstated the law, the trial court’s excusal of prospective

juror #6 did not amount to endorsing the prosecutor’s version of

the law. The trial court made clear that the applicable law had

not yet been given to the jury, irrespective of the prosecutor’s

statements. It specifically asked prospective juror #6 if he

could follow the law as instructed by the trial court at the

appropriate time, and he indicated that he could not. Thus,

prospective juror #6’s answer provided the trial court with

sufficient grounds to excuse him from the jury. See id.

(holding that the trial court did not abuse its discretion in

excusing prospective juror in death penalty case when she stated

that “her personal beliefs might affect her consideration of the -9- death penalty for defendant”); see also N.C. Gen. Stat. § 15A-

1212 (2013) (providing that a challenge for cause can be made

based upon prospective juror’s inability to “render a verdict

with respect to the charge in accordance with the law of North

Carolina”).

c.) Misstatement of Law During Closing Argument

Next, defendant argues that the trial court erred in

overruling his objections during the State’s closing argument

because the prosecutor misstated the law pertaining to the

charge of robbery with a firearm. We disagree.

The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection. In order to assess whether a trial court has abused its discretion when deciding a particular matter, this Court must determine if the ruling could not have been the result of a reasoned decision.

State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)

(citations and quotation marks omitted). An incorrect statement

of law made by the prosecutor during closing arguments requires

the trial court, upon timely objection, to instruct “the jury

that the State’s argument was improper. The trial court’s

failure to sustain defendant’s objection and instruct the jury

to disregard the statement [is] error.” State v. Ratliff, 341 -10- N.C. 610, 616-17, 461 S.E.2d 325, 328-29 (1995) (citation

omitted). This Court shall order a new trial if “defendant

shows on appeal that this error was material and prejudicial.”

State v. Harris, 290 N.C. 681, 695, 228 S.E.2d 437, 445 (1976)

(citation omitted). However, the prejudicial effect of such an

error can be cured by a trial court’s proper instruction to the

jury on the relevant law. State v. Anderson, 322 N.C. 22, 38,

366 S.E.2d 459, 469 (1988).

Here, defendant specifically argues that the prosecutor’s

statements during his closing argument were improper because

“armed robbery requires proof that the defendant did in fact

possess a deadly weapon[,]” but the prosecutor “contended that

the statutes . . . did not require the jury to find or infer the

presence of a dangerous weapon to convict [defendant].” The

relevant portions of the prosecutor’s closing statement relating

to the presence of a firearm state:

When you came into this courthouse back on Monday, you may have had the belief that if an individual robs a bank with a gun versus the threatened use of a gun, that they should be punished differently. If that was your opinion, you have to set that aside because that’s not the law in North Carolina. . . . North Carolina doesn’t make a distinction between an individual who has a gun and an individual who doesn’t have a gun. -11- The prosecutor also read a quotation from State v. Jarrett,

167 N.C. App. 336, 607 S.E.2d 661 (2004), during the State’s

closing argument. The prosecutor stated:

And this is the holding of Jarrett. This is what the Court of Appeals said: This court has explicitly held proof of armed robbery requires that the victim reasonably believed that the defendant possessed or used or threatened to use a firearm in the perpetration of a crime. The State need only prove that the defendant represented that he had a firearm and that the circumstances led the victim to reasonably believe that the defendant had a firearm or might use it.

Even if we assume arguendo that the prosecutor’s above

statements of law and reference to Jarrett were inaccurate and

improper, they were not prejudicial to defendant. During the

State’s closing argument, the prosecutor told the jury that

“[t]his judge is going to instruct you on the law here in a

little bit” and “[y]our role as a juror in North Carolina is

strictly to apply the law as it’s given to you.” After closing

arguments, the trial court provided the jury with proper

instructions on the applicable law and stated, “[y]ou must []

apply the law which I am about to give you to those facts. It is

absolutely necessary that you understand and apply the law as I

give it to you, and not as you think it is, or as you might like -12- it to be.” Shortly thereafter, the trial court instructed that

the State must prove: “Sixth, that the defendant had a firearm

in his possession at the time he obtained the property or that

it reasonably appeared to the victim that a firearm was being

used, in which case you may infer that the said instrument was

what the defendant’s conduct represented it to be.” Thus, the

prosecutor’s deference to the trial court coupled with the trial

court’s correct jury instructions vanquished any prejudice

stemming from the prosecutor’s alleged misstatement of law.

Anderson, supra.

d.) Jury Requests

In his final argument on appeal, defendant contends that

the trial court erred in failing to provide an instruction that

the “jury instructions were the sole source of law they should

apply.” The basis for defendant’s argument stems from the trial

court’s denial of the jury’s request to “have copies or view the

two statutes” relating to common law robbery and robbery with a

dangerous weapon. Defendant argues that the trial court’s

failure to instruct the jury to consider only the jury

instructions as the sole legal authority confused the jury as to

the applicable law. We disagree. -13- “[Arguments] challenging the trial court’s decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). “The prime purpose of a court’s charge to the jury is

the clarification of issues, the elimination of extraneous

matters, and a declaration and an application of the law arising

on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200

S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d

1153 (1974). “As to the issue of jury instructions, we note

that choice of instructions is a matter within the trial court’s

discretion and will not be overturned absent a showing of abuse

of discretion.” State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d

109, 152, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002).

The trial court is best positioned to decide whether “additional

instruction will aid or confuse the jury in its deliberations,

or if further instruction will prevent or cause in itself an

undue emphasis being placed on a particular portion of the

court’s instructions.” State v. Prevette, 317 N.C. 148, 164,

345 S.E.2d 159, 169 (1986). The law presumes that “jurors . .

. attend closely the particular language of the trial court’s

instructions in a criminal case and strive to understand, make

sense of, and follow the instructions given them.” -14- State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993)

(citation and quotation omitted).

Here, the trial court did not give a specific instruction

to only consider the jury instructions once it denied the jury’s

request to view the statutes. However, the trial court properly

eliminated extraneous legal sources by refusing to give the

jurors access to the statutes and providing them with printed

copies of the full jury instructions. Moreover, the trial court

told the jury to follow its instructions:

You must [] apply the law which I am about to give you to those facts. It is absolutely necessary that you understand and apply the law as I give it to you, and not as you think it is, or as you might like it to be. . . . I caution you to consider the instructions as a whole and not to pick one part of the instructions out and disregard the other instructions.

Thus, defendant has failed to show how the trial court’s actions

confused the jury or led the jury to consider matters outside

the jury instructions. Accordingly, we overrule this issue on

appeal.

III. Conclusion

In sum, we expressly decline to address whether or not the

prosecutor misstated the law during jury selection or closing

arguments. Even if the prosecutor misstated the law, his -15- statements did not prejudice defendant due to the curative

actions by the trial court. Furthermore, the trial court did

not err in excusing prospective juror #6 because he indicated

that he could not follow the law as instructed by the trial

court. Finally, the trial court’s failure to instruct the jury

to consider the jury instructions as the sole legal authority

was free of error as defendant failed to show how the trial

court’s omission confused the jury as to the applicable law.

No prejudicial error.

Judges McCULLOUGH and DAVIS concur.

Report per Rule 30(e).