{ "id": 11205203, "name": "STATE OF NORTH CAROLINA v. HENRY JEROME WHITE", "name_abbreviation": "State v. White", "decision_date": "1998-12-29", "docket_number": "No. COA98-97", "first_page": "734", "last_page": "744", "citations": [ { "type": "official", "cite": "131 N.C. App. 734" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "476 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "312", "parenthetical": "concluding that defendant's statement that \"we'll just have to rob somebody\" properly admitted under Rule 801(d) as statement by party opponent" }, { "parenthetical": "quoting N.C.R. Evid. 801(d)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867623 ], "year": 1996, "pin_cites": [ { "page": "503", "parenthetical": "concluding that defendant's statement that \"we'll just have to rob somebody\" properly admitted under Rule 801(d) as statement by party opponent" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0482-01" ] }, { "cite": "505 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571552 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0062-01" ] }, { "cite": "309 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "613" }, { "page": "582" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525326 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0612-01" ] }, { "cite": "272 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "132" }, { "page": "176-77" } ], "opinion_index": 0 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "year": 1980, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "420 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "170", "parenthetical": "quoting State v. Small, 301 N.C. 407, 413, 272 S.E.2d 128, 132 (1980)" }, { "page": "170" } ], "opinion_index": 0 }, { "cite": "332 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506498 ], "year": 1992, "pin_cites": [ { "page": "176-77", "parenthetical": "quoting State v. Small, 301 N.C. 407, 413, 272 S.E.2d 128, 132 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0151-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-5.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "opinion_index": 0 }, { "cite": "139 L. Ed. 2d 873", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "488 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "346 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139375 ], "year": 1997, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0291-01" ] }, { "cite": "462 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "188", "parenthetical": "stating that Batson holding \"prohibits prosecutors from peremptorily challenging jurors solely on the basis of race\"" } ], "opinion_index": 0 }, { "cite": "341 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793102 ], "year": 1995, "pin_cites": [ { "page": "143", "parenthetical": "stating that Batson holding \"prohibits prosecutors from peremptorily challenging jurors solely on the basis of race\"" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0141-01" ] }, { "cite": "137 L. Ed. 2d 483", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "476 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "665" } ], "opinion_index": 0 }, { "cite": "344 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867611 ], "year": 1996, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0542-01" ] }, { "cite": "92 L. Ed. 746", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1948, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "333 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157998 ], "year": 1948, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/us/333/0364-01" ] }, { "cite": "407 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "147-48", "parenthetical": "quoting Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409" } ], "opinion_index": 0 }, { "cite": "329 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554806 ], "year": 1991, "pin_cites": [ { "page": "432", "parenthetical": "quoting Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0423-01" ] }, { "cite": "500 U.S. 352", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6223686 ], "weight": 8, "year": 1991, "pin_cites": [ { "page": "360" }, { "page": "406" }, { "page": "365" }, { "page": "409" }, { "page": "369" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/us/500/0352-01" ] }, { "cite": "443 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "312", "parenthetical": "quoting Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88" } ], "opinion_index": 0 }, { "cite": "336 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535633 ], "year": 1994, "pin_cites": [ { "page": "93", "parenthetical": "quoting Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0078-01" ] }, { "cite": "502 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "348 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659919 ], "year": 1998, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0417-01" ] }, { "cite": "498 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "828" }, { "page": "828" }, { "page": "829", "parenthetical": "stating that to establish prima facie case of racial discrimination, defendant must show that circumstances raise inference that State \"used peremptory challenges to remove potential jurors solely because of their race\"" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649601 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "276" }, { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0268-01" ] }, { "cite": "505 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "288" }, { "page": "287", "parenthetical": "noting that the United States and North Carolina constitutions \"prohibit[] the exercise of peremptory strikes solely on the basis of race\"" } ], "opinion_index": 0 }, { "cite": "349 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571689 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0118-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "96" }, { "page": "87-88" }, { "page": "97" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "445 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "336 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535693 ], "year": 1994, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0710-01" ] }, { "cite": "305 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763650 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0026-01" ] } ], "analysis": { "cardinality": 1019, "char_count": 24590, "ocr_confidence": 0.759, "pagerank": { "raw": 2.5923209591695017e-07, "percentile": 0.8187388531146025 }, "sha256": "15d26e057630b891d2cdf20d897e4412d013779ae3e73fcdfbed6a7a7269e850", "simhash": "1:cf5a9d2a772e1efa", "word_count": 3985 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C. and HORTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HENRY JEROME WHITE" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDefendant Henry Jerome White was convicted of murder in the first degree and was sentenced to a term of life imprisonment during the 18 April 1997 Criminal Session of Forsyth County Superior Court. Defendant appeals his conviction and requests a new trial on the ground that the trial court erred in declining his motion for sequestration and individual voir dire of the jurors. Defendant further contends that the court erred in failing to find that the State exercised its peremptory challenges in a manner violating the Equal Protection Clause. For the reasons hereinafter stated, we find no error at trial.\nThe State presented evidence tending to show that on the morning of 17 February 1996, the body of Carl Marshburn was found lying on the floor of an Earl Schieb Paint and Body Shop (\u201cthe paint shop\u201d) in Winston-Salem, North Carolina. Marshburn, an employee of the paint shop, had been shot twice during an apparent robbery.\nOn the previous evening, defendant and his cousin, Harry Beaufort, drove from Greensboro to the paint shop to pick up Beaufort\u2019s paycheck. Beaufort testified that when he and defendant arrived at the paint shop, he waited in the car while defendant went inside to get the check from Marshburn. Beaufort stated that while he was waiting, he heard two gunshots fired inside the paint shop. He further stated that during the drive back to Greensboro, defendant admitted that he had shot Marshburn and had stolen a \u201ccouple hundred dollars\u201d from his shirt pocket.\nDefendant\u2019s version of the incident was quite different. He testified that before leaving work on 16 February 1996, he gave Beaufort a 9 mm handgun for safekeeping. According to defendant, Beaufort still had the gun in his possession when they arrived at the paint shop later that evening. Defendant claimed that he stopped at a nearby gas station and let Beaufort out of the car before he proceeded to the paint shop to collect Beaufort\u2019s check. Defendant stated that after receiving the check, he left Marshburn in the paint shop alone and unharmed. Then, he drove to a nearby parking lot and waited for Beaufort to return to the car. When Beaufort returned, he told defendant that he had shot and robbed Marshburn, and on the way back to Greensboro, Beaufort gave defendant some of the stolen money. Defendant maintained that although he knew Beaufort intended to rob Marshburn, he did not know that Beaufort was going to kill him.\nAfter considering all of the evidence, the jury found defendant guilty of first-degree murder and recommended a sentence of life imprisonment. From the trial court\u2019s judgment sentencing defendant to life in prison without parole, defendant appeals.\nDefendant\u2019s first assignment of error on appeal is that the trial court improperly denied his motion for individual voir dire and sequestration of the prospective jurors. Section 15A-1214(j) of the \u2022North Carolina General Statutes provides that \u201c[i]n capital cases the trial judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State.\u201d N.C. Gen. Stat. \u00a7 15A-1214Q) (1997). The statute further provides that \u201c[t]hese jurors may be sequestered before and after selection.\u201d Id. Whether to permit sequestration and individual examination of prospective jurors in a capital case is a matter addressed to the sound discretion of the trial court. State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). This Court will not disturb the trial court\u2019s exercise of that discretion, absent a showing that such discretion was clearly abused. Id.\nDefendant contends that in the present case, individual voir dire was necessary to prevent the prospective jurors from giving dishonest answers to sensitive and potentially embarrassing questions exploring their racial prejudices or biases. However, as our Supreme Court has observed, lack of candor is a \u201cdanger [that] is present in every case in which sequestration and individual voir dire is not allowed.\u201d State v. Moseley, 336 N.C. 710, 724, 445 S.E.2d 906, 914 (1994). Furthermore, after denying defendant\u2019s motion, the trial court stated that as jury selection proceeded, should defendant believe that collective void dire was inhibiting the jurors\u2019 candor, defendant could renew his motion, and the trial court would reconsider the matter. Therefore, we hold that the trial court did not abuse its discretion in denying defendant\u2019s motion, and this assignment of error is overruled.\nDefendant next contends that the trial court erred in failing to find that the prosecutor exercised four of its peremptory challenges to exclude African-American jurors based solely upon their race, in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of peremptory challenges as a means to strike jurors from the venire because of their race. Id. Article I, Section 26 of the North Carolina Constitution likewise forbids the use of peremptory strikes for racially discriminatory purposes. State v. Locklear, 349 N.C. 118, 505 S.E.2d 277 (1998). In Batson, the United States Supreme Court outlined a three-step process for determining whether the State has impermissibly exercised its peremptory challenges to remove prospective jurors by reason of their race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88. First, the defendant must make out a prima facie case of purposeful discrimination in the State\u2019s use of peremptory strikes. State v. Cofield, 129 N.C. App. 268, 276, 498 S.E.2d 823, 828 (1998). Second, once the requisite showing has been made, the burden shifts to the State to come forward with race-neutral reasons for exercising the challenges. Id. at 277, 498 S.E.2d at 828. Finally, if the State successfully rebuts the defendant\u2019s prima facie case with race-neutral explanations, the defendant may offer evidence showing that the explanations are merely pretextual. State v. Bonnett, 348 N.C. 417, 433, 502 S.E.2d 563, 575 (1998), petition for cert. filed, - U.S.L.W. - (U.S. Nov. 23, 1998) (No. 98-6972).\nThe State\u2019s explanation for using the peremptory strike in question \u201cmust be clear, reasonably specific, and related to the particular case to be tried.\u201d Locklear, 349 N.C. at -, 505 S.E.2d at 288. Still, it \u201c \u2018need not rise to the level justifying exercise of a challenge for cause,\u2019 \u201d State v. Robinson, 336 N.C. 78, 93, 443 S.E.2d 306, 312 (1994) (quoting Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88). Whether an explanation is, indeed, neutral depends upon whether, accepting the proffered reason as true, the challenge constitutes purposeful discrimination as a matter of law. Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395 (1991). The issue for the trial court is the facial validity of the stated reason, and \u201c[ujnless a discriminatory intent is inherent in the prosecutor\u2019s explanation, the reason offered will be deemed race neutral.\u201d Id. at 360, 114 L. Ed. 2d at 406. The trial court\u2019s findings on the issue of discriminatory intent are accorded great deference, because the findings \u201c \u2018largely turn on evaluation of credibility.\u2019 \u201d State v. Thomas, 329 N.C. 423, 432, 407 S.E.2d 141, 147-48 (1991) (quoting Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409). Thus, an appellate court will uphold the trial court\u2019s findings as to intentional discrimination, unless the \u201c \u2018reviewing court on the entire evidence [is] left with the definite and firm conviction that a mistake ha[s] been committed.\u2019 \u201d Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766 (1948)).\nWhere, as in the instant case, the prosecutor defended his use of the peremptory strikes defendant challenges on appeal, the issue of whether defendant met his initial burden of establishing discrimination is moot, and we may proceed with our analysis as though a prima face case of discrimination had been made. State v. Harden, 344 N.C. 542, 557, 476 S.E.2d 658, 665 (1996), cert. denied, - U.S. -, 137 L. Ed. 2d 483 (1997). Defendant contends that the prosecutor\u2019s purported reasons for challenging four African-American jurors\u2014 Roderick Conrad, Caryl Reynolds, Sonya Jeter, and Brenda Gwyn \u2014 \u25a0 were pretexts and that the trial court committed reversible error in failing to rule accordingly.\nThe prosecutor stated that his reasons for excusing Roderick Conrad were his criminal record, body language, failure to make eye contact, and lack of candor. With respect to Brenda Gwyn, the prosecutor explained that he challenged her because she appeared confused and addled, she did not believe that being beaten by her husband was a serious crime, she had an uncle who was incarcerated for a serious assault, and she failed to fill out all three questionaire forms as instructed. The prosecutor\u2019s articulated bases for challenging Conrad and Gwyn were supported by the record and were facially valid. Because defendant failed to show that the reasons were pre-textual, we uphold the court\u2019s decision accepting the peremptory challenges in question.\nThe prosecutor gave the following reasons for striking Sonya Jeter and Caryl Reynolds from the jury pool:\nBoth black females, both 27 years old, old enough. Almost the same age as the defendant. Sonya was personally opposed to the death penalty. Carolyn [sic] Reynolds is living with her mother, doesn\u2019t have a stake in the community. She\u2019s single, has an illegitimate child, health care provider. State thinks that people who want to save lives don\u2019t want to take lives. And she didn\u2019t think having her purse stolen was a serious crime. . . . And judge, on Miss Jeter, her cousin was convicted by Detective Rowe. Again, she\u2019s another health care provider.\nWhile race was certainly a factor in the prosecutor\u2019s reasons for challenging Reynolds and Jeter, our courts, in applying the Batson decision, have required more to establish an equal protection violation, i.e., that the challenge be based solely upon race. See e.g., Locklear, 349 N.C. at -, 505 S.E.2d at 287 (noting that the United States and North Carolina constitutions \u201cprohibit[] the exercise of peremptory strikes solely on the basis of race\u201d) (emphasis added); Cofield, 129 N.C. App. at 276, 498 S.E.2d at 829 (stating that to establish prima facie case of racial discrimination, defendant must show that circumstances raise inference that State \u201cused peremptory challenges to remove potential jurors solely because of their race\u201d) (emphasis added); State v. Quick, 341 N.C. 141, 143, 462 S.E.2d 186, 188 (1995) (stating that Batson holding \u201cprohibits prosecutors from peremptorily challenging jurors solely on the basis of race\u201d) (emphasis added).\nGiven the overt reference to race in the prosecutor\u2019s purported explanation, we are confounded by defense counsel\u2019s failure to challenge the explanation as pretextual. From the prosecutor\u2019s statements, it is apparent that race was a predominant factor in his decision to strike Jeter and Reynolds from the venire. It could be argued that the most telling evidence of the prosecutor\u2019s intent is the fact that the first words from his mouth as he addressed his reasons for striking Jeter and Reynolds was \u201c[b]oth black females,\u201d not \u201cboth health care providers\u201d or \u201cboth 27 years of age.\u201d The explanation, on its face, belies racial neutrality and manifests an intent to exclude these individual jurors based upon their membership in a distinct class. Defense counsel\u2019s failure to raise the issue of pretext, however, has stymied our inquiry, and we are left with the narrow question of whether the trial court was patently wrong in finding that the prosecutor articulated a legitimate basis for striking the jurors.\nIn addressing this question, we are bound by the tremendous deference accorded the trial court\u2019s determination regarding racial neutrality and purposeful discrimination. Indeed, \u201c[bjecause the trial court is in the best position to assess the prosecutor\u2019s credibility,\u201d a reviewing court will not overturn the trial court\u2019s finding as to intentional discrimination absent manifest error. State v. Cummings, 346 N.C. 291, 309, 488 S.E.2d 550, 561 (1997), cert. denied, - U.S. -, 139 L. Ed. 2d 873 (1998). Given the additional statements by the prosecutor that Jeter \u201cwas personally opposed to the death penalty\u201d and that Reynolds had a \u201ccousin [who] was convicted by [a detective expected to give testimony in the case],\u201d we cannot conclude that the trial court clearly erred in failing to find intentional discrimination in the prosecutor\u2019s exercise of peremptory strikes. Therefore, defendant\u2019s assignment of error must fail.\nBy his next assignment of error, defendant contends that the trial court erred in denying his request for an instruction on the charge of accessory before the fact to capital murder. The relevant statute provides as follows:\nAll distinctions between accessories before the fact and principals to the commission of a felony are abolished. Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony. However, if a person who heretofore would have been guilty and punishable as an accessory before the fact is convicted of a capital felony, and the jury finds that his conviction was based solely on the uncorroborated testimony of one or more principals, coconspirators, or accessories to the crime, he shall be guilty of a Class B2 felony.\nN.C. Gen. Stat. \u00a7 14-5.2 (Cum. Supp. 1997). Defendant contends that there was evidence from which a jury could find that he was an accessory before the fact to the murder of Marshburn and that the evidence against him consisted only of the uncorroborated testimony of Harry Beaufort, whom defendant alleges was the principal in this case. We cannot agree.\nOur Supreme Court articulated the following definition of an accessory before the fact:\n\u201cAn accessory before the fact is one who is absent from the scene when the crime was committed but who participated in the planning or contemplation of the crime in such a way as to \u2018counsel, procure, or command\u2019 the principal(s) to commit it. Thus, the primary distinction between a principal in the second degree and an accessory before the fact is that the latter was not actually or constructively present when the crime was in fact committed.\nState v. Willis, 332 N.C. 151, 176-77, 420 S.E.2d 158, 170 (1992) (quoting State v. Small, 301 N.C. 407, 413, 272 S.E.2d 128, 132 (1980)). Since accessory before the fact to first-degree murder is a lesser included offense, the trial court must instruct on accessory before the fact if there is evidence establishing its commission. Id. However, \u201c [i]f all the evidence shows the commission of the greater offense, the court should not charge on the lesser included offense simply because the jury might not believe some of the evidence.\u201d Id. at 176-77, 420 S.E.2d at 170.\nDefendant argues that according to his testimony, he was not present in the paint shop when Beaufort murdered Marshburn; therefore, the trial court was required to submit the instruction of accessory before the fact to first-degree murder. However, if a defendant is constructively present when the crime is committed, he cannot be convicted as an accessory before the fact, and an instruction on that offense would be erroneous. State v. Maynard, 65 N.C. App. 612, 309 S.E.2d 581 (1983). \u201cConstructive presence occurs when the defendant accompanies the actual perpetrator to the vicinity of the crime and stays there with the purpose of aiding the actual perpetrator, if needed, in committing the offense or escaping thereafter.\u201d Id. at 613, 309 S.E.2d at 582.\nIn the present case, defendant testified that when he and Beaufort arrived in Winston-Salem, he stopped at a gas station near the paint shop and let Beaufort out of the car before proceeding to the paint shop to pick up Beaufort\u2019s check. Then, he drove to a nearby parking lot and waited for Beaufort to return to the car. When Beaufort returned, he told defendant that he had shot and robbed Marshburn, and he gave defendant half of the stolen money. Defendant stated that he knew Beaufort was going to rob Marshburn, but he had no knowledge of Beaufort\u2019s plan to kill him. Even if the jury believed defendant\u2019s testimony, it would have to find that he was at least constructively present, because he \u201caccompanie[d] the actual perpetrator to the vicinity of the crime and stay[ed] there with the purpose of aiding the actual perpetrator, if needed, in . . . escaping thereafter.\u201d Id. We, therefore, hold that the trial court did not err in declining to instruct the jury on the offense of accessory before the fact to capital murder, and defendant\u2019s assignment of error fails.\nDefendant\u2019s final argument is that the trial court erred in permitting Terry Oliver to testify regarding statements made by defendant \u201ctending to show \u2018prior bad acts\u2019 and \u2018extrinsic conduct.\u2019 \u201d The first statement at issue is one made by defendant to Oliver, wherein defendant explained that he had to sell drugs in order to \u201cstay afloat\u201d and to meet his financial obligations. The second statement is one that Oliver overheard while defendant was on the telephone. Oliver testified that defendant told the other party that \u201cif Earl Scheib didn\u2019t quit f***ing him around on his money,... he was going to have to cap someone.\u201d Defendant objected to both of these statements under Rules 404 and 403 of the North Carolina Rules of Evidence.\nRule 404(b) states that \u201c[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.\u201d N.C.R. Evid. 404(b). The rule further provides that such evidence \u201cmay ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\u201d Id. Under Rule 403, evidence which is determined to be relevant and admissible may, nonetheless, be excluded if its probative value is outweighed by the danger of unfair prejudice. N.C.R. Evid. 403. Whether to exclude evidence under Rule 403 is within the trial court\u2019s discretion, and the court\u2019s ruling in this respect will not be disturbed absent a showing that the ruling was arbitrary or manifestly unsupported by reason. State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998).\nFirst, we note that defendant\u2019s statement that \u201che was going to have to cap someone\u201d if Scheib did not stop garnishing his wages does not constitute a prior bad act under Rule 404. If anything, it is a hearsay statement offered to prove the truth of the matter asserted. Nevertheless, this statement would be admissible under recognized exceptions to the general rule prohibiting the admission of hearsay testimony. Defendant\u2019s statement that \u201che was going to have to cap someone\u201d was admissible under Rule 801(d) of the North Carolina Rules of Evidence as an admission or statement of a party opponent. N.C.R. Evid. 801(d); see also State v. Workman, 344 N.C. 482, 503, 476 S.E.2d 301, 312 (1996) (concluding that defendant\u2019s statement that \u201cwe\u2019ll just have to rob somebody\u201d properly admitted under Rule 801(d) as statement by party opponent). Under Rule 801(d), a hearsay statement is admissible \u201c \u2018if it is offered against a party and it is . . . his own statement.\u2019 \u201d Id. (quoting N.C.R. Evid. 801(d)). The challenged statement meets these requirements; therefore, the trial court did not err in admitting this statement into evidence.\nWith respect to defendant\u2019s statement that he sold drugs to make ends meet, we hold, based upon the preceding discussion, that this too constitutes a statement by a party opponent, which is admissible under Rule 801(d). Still, defendant argues that this evidence does not establish a motive for the crime charged and, thus, the trial court erred in instructing the jury that they could consider this evidence for the limited purpose of finding motive. Again, we must disagree.\nThe State\u2019s evidence tended to show that before the robbery and murder of Marshburn, defendant was experiencing significant financial problems due to the fact that Schieb was garnishing his pay to compensate for a prior shortage. Under Rule 401 of the Rules of Evidence, relevant evidence is that which has any tendency to prove the existence of a material fact. N.C.R. Evid. 401. Oliver\u2019s testimony that defendant was in such dire need of money that he sold drugs tended to make it more probable that defendant\u2019s need for money motivated him to rob and kill Marshburn. Furthermore, we reject defendant\u2019s argument that the trial court abused its discretion in admitting the evidence, as we find no gross improprieties in the trial court\u2019s determination that the probative value of the evidence outweighed its prejudicial nature. Therefore, defendant\u2019s assignment of error is overruled.\nBased upon all of the foregoing, we hold that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges MARTIN, John C. and HORTON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Ronald M. Marquette, for the State.", "Robert K. Leonard and Teresa L. Hierfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HENRY JEROME WHITE\nNo. COA98-97\n(Filed 29 December 1998)\n1. Jury\u2014 individual voir dire and sequestration \u2014 denied\nThe trial court did not abuse its discretion in a first-degree murder prosecution by denying defendant\u2019s motion for individual voir dire and sequestration of prospective jurors where defendant contended that individual voir dire was necessary to prevent prospective jurors from giving dishonest answers to sensitive and potentially embarrassing questions concerning racial prejudices. Lack of candor is a danger that is present in every case and the trial court here stated that it would reconsider the matter if defendant believed that collective voir dire was inhibiting jurors\u2019 candor as jury selection proceeded.\n2. Jury\u2014 peremptory challenges \u2014 racial basis\nThere was no clear error in a first-degree murder prosecution in the trial court failing to find intentional discrimination in the prosecutor\u2019s exercise of peremptory strikes where the prosecutor\u2019s articulated bases for challenging two of the prospective jurors were supported by the record and were factually valid, and, although it was apparent from the prosecutor\u2019s statements that race was a predominant factor in his decision to strike two other prospective jurors, defense counsel failed to raise the issue of pretext and there were additional reasons given by the prosecutor. The Court of Appeals was bound by the tremendous deference accorded to the trial court\u2019s determination regarding racial neutrality and purposeful discrimination.\n3. Accomplices and Accessories\u2014 accessory before the fact to capital murder \u2014 instruction denied \u2014 no error\nThe trial court did not err in a first-degree murder prosecution by declining to instruct the jury on the offense of accessory before the fact to capital murder where, even if the jury believed defendant\u2019s testimony, it would have had to find that defendant was at least constructively present. If a defendant is constructively present when the crime is committed, he cannot be convicted as an accessory before the fact.\n4. Evidence\u2014 hearsay \u2014 prior statement by defendant\u2014 admissible\nThe trial court did not err in a first-degree murder prosecution by admitting defendant\u2019s statement that \u201che was going to have to cap someone\u201d if his employer did not stop garnishing his wages. If anything, this was a hearsay statement admissible under N.C.G.S. \u00a7 8C-1, Rule 801(b) as an admission or statement of a party opponent.\n5. Evidence\u2014 hearsay \u2014 defendant\u2019s statement \u2014 admission of party opponent \u2014 evidence of motive\nThe trial court did not err in a first-degree murder prosecution by admitting defendant\u2019s statement that he sold drugs to make ends meet or by instructing the jury that it could consider this evidence for the purpose of finding motive. The statement constituted a statement by a party opponent admissible under N.C.G.S. \u00a7 8C-1, Rule 801(d) and the testimony that defendant was in such dire need of money that he sold drugs tended to make it more probable that his need for money motivated him to rob and kill this victim.\nAppeal by defendant from judgment entered 18 April 1997 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 21 October 1998.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Ronald M. Marquette, for the State.\nRobert K. Leonard and Teresa L. Hierfor defendant-appellant." }, "file_name": "0734-01", "first_page_order": 768, "last_page_order": 778 }