{
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  "name": "STATE OF NORTH CAROLINA v. HARVEY LEE MOXLEY and BOBBY JOE MOXLEY",
  "name_abbreviation": "State v. Moxley",
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    "judges": [
      "Chief Judge Hedrick concurs.",
      "Judge BECTON concurs in the result."
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    "parties": [
      "STATE OF NORTH CAROLINA v. HARVEY LEE MOXLEY and BOBBY JOE MOXLEY"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nH-1\nCommon Issues\n1. Death Qualification of Jurors\nDefendants contend the court erred in permitting the case to be tried capitally and in permitting death qualification of the jury where the evidence was insufficient to obtain either a murder conviction or the death penalty. We disagree.\nPrior to trial, both defendants filed motions for a pretrial hearing to determine the existence of aggravating circumstances as set forth in G.S. 15A-2000(e)(9) as establishing a basis for the imposition of the death penalty. Both motions were denied by Judge Pope. Defendants contend the denial of their motions violated their right to a fair trial. Our Supreme Court, in State v. Murray, 310 N.C. 541, 544-45, 313 S.E. 2d 523, 527 (1984), addressed a similar argument as follows:\n[T]he defendant contends that the procedure of \u201cdeath qualifying\u201d the jury in the guilt-innocence phase of his trial deprived him of his right to a fair trial. Although the defendant received a life sentence in this case, his trial began as a capital case and the jury was selected pursuant to G.S. 15A-2000 (a)(2). The defendant maintains that the procedure of death qualifying a jury results in a guilt prone jury. We have found this argument to be without merit on numerous occasions, and we now reaffirm our previous holdings (citations omitted).\nThe assignment of error is overruled.\n2. Improper Closing Arguments by Prosecution\nDefendants contend the prosecutor\u2019s final argument violated their right to a fair trial because he (i) urged the jury to use as substantive evidence testimony that was only admitted for impeachment purposes, (ii) misstated a critical fact and (iii) unfairly cast improper aspersions on the character of the defendant. Both defendants candidly admit in their briefs that neither lodged any objections at trial during this argument. Although we agree it was improper for the State to allude to this testimony as substantive evidence during closing argument when it was not offered for that purpose, State v. Easterling, 300 N.C. 594, 268 S.E. 2d 800 (1980), when reviewed in the context in which it was made, use of this evidence did not constitute prejudicial error. The judge called the prosecutor to the bench on her own motion after this erroneous statement was made, and the prosecutor made no further reference to this impeachment testimony. In the absence of an objection, the remaining two alleged errors in the prosecutor\u2019s final argument \u201cdid not amount to such gross impropriety as to require the trial judge to act ex mero motu . . . .\u201d State v. Oliver, 309 N.C. 326, 359, 307 S.E. 2d 304, 324 (1983). The assignment of error is overruled.\n3. \u201cActing in Concert\u201d Instruction\nThe criminal charges against defendants arose out of an incident involving both defendants and James Ferguson that occurred outside an apartment complex in North Wilkesboro on 3 June 1983. Ferguson, who was sixty (60) years old, was beaten and kicked about the head. Ferguson died on 16 December 1983 of complications resulting from injury to the brain he received in this incident. Warrants were issued charging defendants with murder on account of Ferguson\u2019s death.\nThe trial court instructed the jury on acting in concert which was taken verbatim from the North Carolina Pattern Jury Instructions \u2014 Criminal 202.10. Defendants contend this instruction was error as it effectively undermined (i) Harvey Lee Moxley\u2019s claim of self-defense and (ii) Bobby Joe Moxley\u2019s claim of defense of a family member. The thrust of this argument is that because a claim of self-defense depends upon the individual defendant\u2019s own perceptions and beliefs as to the necessity of the force used, and the reasonableness of those perceptions and beliefs, State v. Herbin, 298 N.C. 441, 259 S.E. 2d 263 (1979), an instruction on \u201cacting in concert\u201d given in conjunction with a claim of self-defense or defense of others impermissibly shifts the burden of proof away from the State and onto the defendant in violation of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975). A similar argument was rejected by our Supreme Court in State v. Boykin, 310 N.C. 118, 310 S.E. 2d 315 (1984). In addition, the trial court herein clearly instructed the jury that: \u201cThe State has the burden of proving from the evidence beyond a reasonable doubt that the defendant did not act in self-defense.\u201d Thus, when viewed contextually as we are required to do, State v. Griffin, 308 N.C. 303, 302 S.E. 2d 447 (1983), the instruction on acting in concert did not shift or reduce the State\u2019s burden of proof on self-defense.\nDefendants further contend that there was no factual basis for giving this instruction. To support an instruction on acting in concert, the State must present sufficient evidence that two or more persons acted together with a common plan or purpose to commit a crime. State v. Forney, 310 N.C. 126, 310 S.E. 2d 20 (1984). The State presented evidence which tended to show that Harvey Lee Moxley and Ferguson were involved in an incident wherein Harvey got cut with an object across his arm. After Harvey was cut and tending to his wound, Bobby Joe Moxley approached Ferguson, reached in his back pocket and made stabbing or slashing motions at Ferguson. Ferguson went to the ground, and Bobby kicked Ferguson a few times while he was down. There was testimony that both defendants continued to kick Ferguson while he was down. We hold this was sufficient evidence to support an instruction on \u201cacting in concert.\u201d The assignment of error is overruled.\nII\nDefendant Harvey Lee Moxley\nIn his final assignment of error, defendant Harvey Lee Moxley contends the court abused its discretion in sentencing him to a term of fifteen (15) years imprisonment. The trial judge found one aggravating factor and five mitigating factors and sentenced him to nine (9) years beyond the presumptive term. \u201c[A] trial judge need not justify the weight he attaches to any factor. He may properly determine that one factor in aggravation outweighs more than one factor in mitigation and vice versa,\u201d State v. Ahearn, 307 N.C. 584, 597, 300 S.E. 2d 689, 697 (1983), and \u201c[t]he balance struck by the trial judge will not be disturbed if there is support in the record for his determination.\u201d State v. Davis, 58 N.C. App. 330, 333-34, 293 S.E. 2d 658, 661, disc. rev. denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). In State v. White, 68 N.C. App. 671, 316 S.E. 2d 112 (1984), a contention similar to defendant\u2019s that because he did not receive a sentence substantially less than Bobby Moxley constituted an abuse of discretion was rejected by this Court. The assignment of error is overruled.\nIII\nDefendant Bobby Joe Moxley\n1. Motion to Dismiss\nDefendant contends the court erred in denying his motion to dismiss all charges on the ground that there was no evidence that he was the aggressor or used excessive force. At least two witnesses, Steve Brown and Diane Barnett, testified that Ferguson was backing away from defendant, that defendant reached into his back pocket, that defendant made striking or slashing motions at or toward Ferguson, that Ferguson went down, and that defendant kicked him while he was down. We hold this evidence was sufficient to go to the jury on the question of whether or not defendant was the aggressor or whether he used excessive force. See State v. Jones, 299 N.C. 103, 261 S.E. 2d 1 (1980).\n2. Evidence of Decedent\u2019s Appearance\nNext, defendant contends that evidence regarding Ferguson\u2019s physical appearance at the scene and in the hospital was irrelevant, inflammatory and constituted prejudicial error. Similar evidence was admitted without objection; when a defendant objects to the admission of evidence but similar evidence is later admitted without objection, defendant waives his objection. State v. Tysor, 307 N.C. 679, 300 S.E. 2d 366 (1983). This evidence was relevant under G.S. 8C-1, Rule 401 on the issue of excessive force, was not prejudicial under G.S. 8C-1, Rule 403, and was not inflammatory under our old rules. See State v. Lewis, 58 N.C. App. 348, 293 S.E. 2d 638, cert. denied, 311 N.C. 766, 321 S.E. 2d 152 (1984). (The admission of two human skulls into evidence was not inflammatory.)\n3. Instruction on Flight\nDefendant argues there was no factual basis for giving an instruction on flight as contained in the North Carolina Pattern Instructions \u2014 Criminal 104.35. The State\u2019s evidence tended to show that both defendants went to Winston-Salem soon after this incident occurred, and remained there continually for two and one-half weeks until the police located them there. As stated by our Supreme Court in State v. Irick, 291 N.C. 480, 494, 231 S.E. 2d 833, 842 (1977):\nSo long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant\u2019s conduct does not render the instruction improper.\nThe assignment of error is overruled.\n4. Sentencing\nFinally, defendant contends the court incorrectly considered his prior criminal record as an aggravating factor and abused its discretion by imposing the maximum sentence allowed by statute. Defendant contends the court should not have considered a prior murder conviction on 6 June 1972 because it was so old. This argument is without merit because G.S. 15A-1340.4(a)(1)(O) imposes no time limitations on the use of prior convictions as aggravating factors. Although defendant attempts to argue the constitutionality of this statute in his brief, it is well-established that appellate courts will decline to rule upon constitutional questions when they were not argued or passed upon at the trial level. State v. Woods, 307 N.C. 213, 297 S.E. 2d 574 (1982). Defendant has wholly failed to show that the court abused its discretion by imposing the maximum sentence allowed by statute under the facts of this particular case.\nThe defendants herein received a fair trial, free from prejudicial error.\nNo error.\nChief Judge Hedrick concurs.\nJudge BECTON concurs in the result.",
        "type": "majority",
        "author": "PARKER, Judge."
      },
      {
        "text": "Judge Becton\nconcurring in the result.\nAlthough my intuitive convictions \u2014 that a death-qualified jury is more prone to convict than a non-death-qualified jury and fails to represent a fair cross-section of the community \u2014 have been verified based on methodologically sound sociological studies and surveys as well as expert testimony, see Grigsby v. Mabry, 758 F. 2d 226 (8th Cir. 1985) (en banc), petition for cert. granted sub nom. Lockhart v. McCree, --- U.S. ---, 88 L.Ed. 2d 48, 106 S.Ct. 59 (7 October 1985), I am compelled to concur in the result. I do so, however, solely because our Supreme Court has consistently upheld the death qualification process utilized in this case. See, e.g., State v. Young, 312 N.C. 669, 325 S.E. 2d 181 (1985); State v. Murray, 310 N.C. 541, 313 S.E. 2d 523 (1984).",
        "type": "concurrence",
        "author": "Judge Becton"
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    ],
    "attorneys": [
      "Attorney General Thornburg by Charles H. Hobgood, Assistant Attorney General, for the State.",
      "Appellate Defender Stein, by Louis D. Bilionis, Assistant Appellate Defender, for Harvey Lee Moxley, defendant appellant.",
      "Paul W. Freeman, Jr., for Bobby Joe Moxley, defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HARVEY LEE MOXLEY and BOBBY JOE MOXLEY\nNo. 8523SC321\n(Filed 31 December 1985)\n1. Constitutional Law \u00a7 63\u2014 death qualification of jury\nThe trial court did not err in permitting a murder case to be tried capitally and in permitting death qualification of the jury.\n2. Criminal Law \u00a7 165\u2014 prosecutor\u2019s jury argument \u2014 failure to object\nDefendants could not complain of alleged errors in the prosecutor\u2019s final argument where neither defendant lodged any objections at trial during this argument, and the prosecutor\u2019s reference to impeachment evidence as substantive evidence did not constitute prejudicial error.\n3. Criminal Law \u00a7 113.7\u2014 acting in concept \u2014 burden of proof on self-defense \u2014 instruction proper\nThe trial court\u2019s instruction on acting in concert in a homicide case did not shift or reduce the State\u2019s burden of proof on self-defense.\n4. Criminal Law \u00a7 113.7\u2014 acting in concert \u2014 instruction proper\nEvidence in a prosecution for homicide was sufficient to support an instruction on \u201cacting in concert\u201d where it tended to show that one defendant and the victim were involved in an incident wherein defendant was cut with an object across his arm; after defendant was cut and tending to his wound, the other defendant approached the victim, reached in his back pocket and made stabbing or slashing motions at the victim; the victim went to the ground and was kicked by the unhurt defendant while he was down; and both defendants then continued to kick the victim while he was down.\n5. Homicide \u00a7 31.6\u2014 voluntary manslaughter \u2014 severity of sentence\nThe trial court did not abuse its discretion in sentencing defendant, who was convicted of voluntary manslaughter, to a term of 15 years imprisonment where the trial judge found one aggravating factor and five mitigating factors and sentenced him to 9 years beyond the presumptive term, since a trial judge need not justify the weight he attaches to any factor and may properly determine that one factor in aggravation outweighs more than one factor in mitigation and vice versa.\n6. Homicide g 21.9\u2014 defendant as aggressor \u2014 use of excessive force \u2014 sufficiency of evidence\nEvidence in a homicide prosecution was sufficient to go to the jury on the question of whether defendant was the aggressor or whether he used excessive force where there was testimony from at least two witnesses that defendant reached into his back pocket, that defendant made striking or slashing motions at or toward the victim, that the victim went down, and that defendant kicked him while he was down.\n7. Homicide 8 15\u2014 appearance of victim \u2014evidence admissible\nThere was no merit to defendant\u2019s contention in a homicide prosecution that evidence regarding the victim\u2019s physical appearance at the scene and in the hospital was irrelevant, inflammatory and constituted prejudicial error; furthermore, defendant waived his objection to the evidence when similar evidence was admitted without objection.\n8. Criminal Law 8 46.1\u2014 flight by defendant \u2014 instruction proper\nThe trial court properly instructed on flight of defendant where the evidence tended to show that both defendants went to a nearby town soon after the incident occurred and remained there continually for two and one-half weeks until the police located them there.\n9. Homicide 8 31.6\u2014 voluntary manslaughter \u2014 sentence\u2014prior criminal record as aggravating factor\nThe trial court did not err in considering defendant\u2019s prior criminal record as an aggravating factor, and there was no merit to defendant's contention that the court should not have considered a prior murder conviction on 6 June 1972 because it was so old.\nJudge Becton concurring in the result.\nAPPEAL by defendants from Pope, Judge. Judgment entered 15 August 1984 in Superior Court, Wilkes County. Heard in the Court of Appeals 21 October 1985.\nDefendants were charged in proper bills of indictment with the murder of James Richard Ferguson. The cases were consolidated for trial, and defendants were found guilty of voluntary manslaughter. Harvey Lee Moxley was sentenced to fifteen (15) years imprisonment; Bobby Joe Moxley wa\u00e1 sentenced to twenty (20) years imprisonment. Defendants appealed.\nAttorney General Thornburg by Charles H. Hobgood, Assistant Attorney General, for the State.\nAppellate Defender Stein, by Louis D. Bilionis, Assistant Appellate Defender, for Harvey Lee Moxley, defendant appellant.\nPaul W. Freeman, Jr., for Bobby Joe Moxley, defendant appellant."
  },
  "file_name": "0551-01",
  "first_page_order": 583,
  "last_page_order": 590
}
