{ "id": 867641, "name": "STATE OF NORTH CAROLINA v. LEVERNE BURRUS", "name_abbreviation": "State v. Burrus", "decision_date": "1996-07-31", "docket_number": "No. 183A95", "first_page": "79", "last_page": "95", "citations": [ { "type": "official", "cite": "344 N.C. 79" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "45 ALR4th 602", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "72 ALR3d 958", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "46 ALR3d 295", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "33 ALR3d 17", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "445 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "15" } ], "opinion_index": 0 }, { "cite": "336 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536876 ], "year": 1994, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0381-01" ] }, { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] }, { "cite": "450 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "464" } ], "opinion_index": 0 }, { "cite": "338 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520919 ], "year": 1994, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0483-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "405 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553398 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0001-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "459 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "505" } ], "opinion_index": 0 }, { "cite": "341 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793201 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0053-01" ] }, { "cite": "340 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "467 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "342 N.C. 797", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795993 ], "year": 1996, "pin_cites": [ { "page": "805" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0797-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "467 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "342 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795950 ], "year": 1996, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0419-01" ] }, { "cite": "64 U.S.L.W. 3855", "category": "reporters:specialty", "reporter": "U.S.L.W.", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "464 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "342 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795939 ], "year": 1995, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0249-01" ] }, { "cite": "400 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "328 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540300 ], "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0223-01" ] }, { "cite": "134 L. Ed. 2d 100", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "461 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "341 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793223 ], "year": 1995, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0198-01" ] }, { "cite": "307 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "347" }, { "page": "347" }, { "page": "347-48" } ], "opinion_index": 0 }, { "cite": "309 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761933 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "254" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0239-01" ] }, { "cite": "133 L. Ed. 2d 436", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "457 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "850" } ], "opinion_index": 0 }, { "cite": "340 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790203 ], "year": 1995, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0264-01" ] }, { "cite": "463 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "342 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796078 ], "year": 1995, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0113-01" ] } ], "analysis": { "cardinality": 1137, "char_count": 36405, "ocr_confidence": 0.742, "pagerank": { "raw": 3.282450105939432e-07, "percentile": 0.8708386087374206 }, "sha256": "64d7ec1f8677c65803148e5140ae5fbdab4de532ac3d7f598a3b2ff650cb511d", "simhash": "1:8728c46294ba9cf2", "word_count": 5938 }, "last_updated": "2023-07-14T22:15:37.608853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. LEVERNE BURRUS" ], "opinions": [ { "text": "MITCHELL, Chief Justice.\nOn 7 June 1993, defendant Leverne Burrus was indicted for two counts of first-degree murder, one count of conspiracy to commit robbery with a dangerous weapon, and two counts of robbery with a dangerous weapon. Defendant was tried capitally at the 12 September 1994 Criminal Session of Superior Court, Hyde County. The jury found defendant guilty of both counts of first-degree murder on the basis of premeditation and deliberation, guilty of conspiracy to commit robbery, and not guilty of either robbery with a dangerous weapon charge. After a capital sentencing proceeding, the jury recommended sentences of life imprisonment for each of the murder convictions, and the trial court sentenced defendant accordingly. In addition, the trial court imposed a ten-year sentence of imprisonment for the conspiracy to commit robbery conviction, the sentences to run consecutively.\nThe State\u2019s evidence tended to show inter alia that the victims, John Darby Wood, Jr., and Steven Swindell, were shot and killed while sitting in Wood\u2019s car as it was stopped along a rural road in Hyde County on 28 December 1992.\nGwendolyn Spencer testified that she had entered pleas of guilty to two counts of second-degree murder and one count of armed robbery in connection with these crimes. She further testified that on 28 December 1992, she saw Wood and Swindell at Midgett\u2019s Trailer Park. She saw defendant approach Wood\u2019s car with a gun in his pants. Defendant talked to Swindell about money and a gun. It appeared that defendant was demanding $300.00 for the return of the gun. Defendant later made comments that he thought Wood was an \u201cundercover.\u201d Defendant stated that he would get rid of Wood and devised a plan. As part of the plan, Gwendolyn Spencer and Marsha Gibbs were to search the car. Gwendolyn Spencer, Marsha Gibbs, defendant, and Kerry Spencer drove to Saint Lydia, where they stopped at Kerry Spencer\u2019s mother\u2019s house to get gloves to be used in the search of the car. As they returned, they saw Wood\u2019s car approach an intersection. They stopped the car, and defendant and Kerry Spencer got out and walked to the passenger side of the car. Gwendolyn Spencer testified that she heard gunshots and saw Steven Swindell open the driver\u2019s door, speak to defendant, and then fall out of the car and to the ground. She then saw Kerry Spencer attempt to cut Wood\u2019s throat.\nKerry Spencer testified that he had also entered guilty pleas to two counts of second-degree murder and one count of armed robbery. He testified that on 28 December 1992, he saw Wood and Swindell in a brown Toyota. Defendant told Marsha Gibbs, who was driving, to back up. Kerry and defendant got out and walked over to the brown Toyota. A conversation ensued between defendant and Wood, then Kerry heard shots being fired. He saw defendant shooting into the passenger side of the car. Kerry grabbed the gun from defendant, looked at it, and then gave it back to him. The women searched the car. Kerry made cutting motions at Wood\u2019s throat with a box cutter, but he did not actually cut him. After the group returned to the trailer park, Kerry heard Gwendolyn Spencer tell Victor Spencer that defendant had shot and killed \u201cthose two white guys.\u201d\nBy his first assignment of error, defendant contends that the trial court erred by denying his motion for individual voir dire of prospective jurors. Defendant argues that a review of the jury voir dire reveals that numerous prejudicial statements were made by some prospective jurors in the presence of the others, which denied his right to be tried by an impartial jury and his right to due process.\nWhether to allow a motion for individual voir dire is a matter within the sound discretion of the trial court, and the trial court\u2019s decision will not be reversed absent a showing of an abuse of discretion. State v. Burke, 342 N.C. 113, 122, 463 S.E.2d 212, 218 (1995). In this case, defendant points to certain statements made by three of the prospective jurors \u2014 Modlin, Clark, and Carlin \u2014 as support for his argument that the trial court erred in its ruling.\nAlthough the three prospective jurors in question did make statements indicating that they were predisposed to convict defendant, we find that there was nothing so unusual or outrageous about their comments as to render the jury selection process unfair to defendant. There is no indication that any other juror was influenced by their comments. Furthermore, potential jurors Modlin and Clark were dismissed summarily by the trial court, and the trial court allowed defendant to excuse Carlin for cause. Because defendant has failed to show an abuse of the trial court\u2019s discretion, this assignment of error is overruled.\nIn a related assignment of error, defendant contends that the trial court erred by failing to give him an opportunity to question certain prospective jurors. Defendant argues that he was not allowed the opportunity to \u201crehabilitate\u201d certain prospective jurors who stated, for one reason or another, that they would not be able to render a fair and impartial verdict in this case.\n\u201cThe extent and manner of a party\u2019s inquiry into a potential juror\u2019s fitness to serve is within the trial court\u2019s discretion.\u201d State v. White, 340 N.C. 264, 280, 457 S.E.2d 841, 850, cert. denied,-U.S.-, 133 L. Ed. 2d 436 (1995). Defendant here has failed to show that the trial court abused its discretion in not allowing him to question prospective jurors. At most, defendant speculates that by further examination of a prospective juror, he might possibly have \u201crehabilitated\u201d that juror to the point that the court would not have summarily dismissed him. Accordingly, this assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in denying his motion for a change of venue. Defendant argues that his motion should have been granted because of the extensive publicity this case received and the fact that a large number of prospective jurors had formed an opinion about the guilt or innocence of defendant.\nThe test for determining whether a change of venue should be granted is whether \u201cthere is a reasonable likelihood that the defendant will not receive a fair trial.\u201d State v. Jerrett, 309 N.C. 239, 254, 307 S.E.2d 339, 347 (1983). The burden is on the defendant to show a reasonable likelihood that the prospective jurors will base their decision in the case upon pretrial information rather than the evidence presented at trial and will be unable to remove from their minds any preconceived impressions they might have formed. Id. at 255, 307 S.E.2d at 347. This determination rests within the trial court\u2019s sound discretion and will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Alston, 341 N.C. 198, 225, 461 S.E.2d 687, 701 (1995), cert. denied,-U.S.-, 134 L. Ed. 2d 100 (1996).\nFurthermore, we have held that for a defendant to meet his burden of showing that pretrial publicity prevented him from receiving a fair trial, he must show that jurors have prior knowledge concerning the case, that he exhausted his peremptory challenges, and that a juror objectionable to him sat on the jury. Jerrett, 309 N.C. at 255, 307 S.E.2d at 347-48. Generally, in determining whether a defendant has met his burden of showing prejudice, it is relevant to consider whether the chosen jurors stated that they could ignore any prior knowledge or earlier held opinions and decide the case solely on the evidence presented at trial. Id. \u201cThe best and most reliable evidence as to whether existing community prejudice will prevent a fair trial can be drawn from prospective jurors\u2019 responses to questions during the jury selection process.\u201d State v. Madric, 328 N.C. 223, 228, 400 S.E.2d 31, 34 (1991).\nAfter reviewing the record, we conclude that defendant has failed to show that the trial court abused its discretion in denying his motion for a change of venue. During the jury selection process, after ten jurors had been selected, the trial court stated:\nYou got only one person, Mr. Berry, at this point that indicated former time he had some opinion. As I understand it, the rest of the jurors in the box at this time have been passed haven\u2019t had an opinion and don\u2019t have one now as I understand it. Several of them expressed only the vaguest knowledge of the case.\nWe also find it significant that after the jury had been selected, counsel for defendant expressly admitted in his argument to the trial court that his motion was not based on pretrial publicity:\nMr. Harrell: Yes, Sir. The, the motion is not founded or based upon pre-trial publicity. It\u2019s based upon comments that were made by individual jurors.\nThe Court: I understand. I want to rule on your motion to change venue, and based upon the fact that I haven\u2019t heard anything indicate [sic] these selected jurors would base a decision upon pre-trial information.\nMr. Harrell: Your Honor, quite candidly, I\u2019ve heard nothing from the sitting jurors that indicates that any pre-trial information would play a part in their decision.\nInstead, defendant again relies on his earlier argument that certain statements of prospective jurors elicited during the voir dire must have prejudiced the jurors who were actually seated. We have previously addressed those statements and need not do so again here. Because defendant has failed to identify a single juror objectionable to him who sat on the jury, we conclude that he has not carried his burden of showing specific and identifiable prejudice requiring a change of venue. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in denying his motion to excuse prospective juror Cutler for cause. Defendant argues the prospective juror had indicated that he could not be fair and impartial.\nDuring voir dire, Mr. Cutler stated at one point that he was a former deputy sheriff of Hyde County and that he had discussed defendant\u2019s case on several occasions. He said if one fact that he was aware of became an aspect in the case, it would have a strong impact on him and substantially impair his ability to make a fair and impartial decision. Defendant challenged Cutler for cause, and the trial court denied that challenge. Defendant then peremptorily excused Cutler. Later, after defendant had exhausted his peremptory challenges, he attempted to renew his challenge for cause. The challenge was again denied.\nN.C.G.S. \u00a7 15A-1212 provides in part:\nA challenge for cause to an individual juror may be made by any party on the ground that the juror:\n(9) For any other cause is unable to render a fair and impartial verdict.\nN.C.G.S. \u00a7 15A-1212(9) (1988).\nThis Court has recently held that the granting of a challenge for cause under N.C.G.S. \u00a7 15A-1212(9) rests in the sound discretion of the trial court and will not be reversed absent a showing of an abuse of discretion. State v. Jaynes, 342 N.C. 249, 270, 464 S.E.2d 448, 461 (1995), cert. denied,-U.S.-,-L. Ed. 2d-, 64 U.S.L.W. 3855 (1996). \u201cWhere the trial court can reasonably conclude from the voir dire . . . that a prospective juror can disregard prior knowledge and impressions, follow the trial court\u2019s instructions on the law, and render an impartial, independent decision based on the evidence, excusal is not mandatory.\u201d Id.\nHere, upon further questioning, prospective juror Cutler stated clearly and unequivocally that he could put out of his mind what he had heard before and decide this case solely on what he heard in the courtroom. Therefore, we conclude that the trial court did not err in denying the challenge for cause. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in allowing the State to ask leading questions of its witnesses. Defendant maintains that the crux of the State\u2019s case was the testimony of Gwendolyn Spencer and Kerry Spencer, who agreed to testify against defendant in exchange for pleading guilty to two counts of second-degree murder and one count of armed robbery. Defendant argues that throughout the trial, the State impermissibly posed leading questions to these two witnesses and to members of their families.\nAt the outset, we note that defendant provides numerous examples of what he contends were leading questions by the prosecutor. However, defendant objected on only two occasions. Therefore, with respect to the majority of the questions complained of, we review them under the plain error standard, which requires defendant to make a showing \u201cthat the error was so fundamental that the result would probably have been different absent the error.\u201d State v. Kandies, 342 N.C. 419, 452, 467 S.E.2d 67, 85 (1996).\nThe evidence against defendant in this case was overwhelming. Therefore, it cannot reasonably be believed that the questions of which defendant now complains, but to which he failed to object at the trial, resulted in error so fundamental \u201c \u2018that justice cannot have been done.\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).\nWe turn now to those two instances where defendant did object to the prosecutor\u2019s questions. The first occurred during the prosecutor\u2019s direct examination of Gwendolyn Spencer:\nQ. Did the defendant ever say anything about the passenger\u2019s name?\nA. Yes. He said that he, the guy didn\u2019t tell him Darby. He had told him something else.\nQ. Did that concern the defendant? Did it worry the defendant?\nMr. Harrell: Objection.\nThe Court: Overruled.\nA. I guess.\nThe second objection also occurred during the prosecutor\u2019s direct examination of Ms. Spencer:\nQ. At the time or just after the shooting occurred when you were out of the car getting the gloves were you scared of Leveme Burrus?\nMr. Harrell: Objection.\nThe Court: Overruled.\nA leading question has been defined as one which suggests the desired response and may frequently be answered \u201cyes\u201d or \u201cno.\u201d However, a question is not always considered leading merely because it may be answered \u201cyes\u201d or \u201cno.\u201d State v. Mitchell, 342 N.C. 797, 805, 467 S.E.2d 416, 421 (1996). We have said that a ruling on the admissibility of a leading question is in the sound discretion of the trial court and will not be reversed in the absence of an abuse of discretion. Id. at 806, 467 S.E.2d at 421.\nWe conclude that the two questions to which defendant objected at trial merely directed the witness toward the specific matter being addressed without suggesting the desired answer. Assuming arguendo that they were leading, however, a trial court may be reversed for an abuse of discretion only upon a showing that its ruling could not have been the result of a reasoned decision. State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986). We do not find such an abuse of discretion by the trial court here in allowing the questions to be asked and answered. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in overruling his objections to impermissible hearsay testimony. \u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c) (1992). After a thorough review of the specific statements complained of, we conclude either that they were not hearsay or that they were admissible under a recognized exception to the hearsay rule. Further, even assuming arguendo that any of the statements complained of were hearsay and not admissible under any recognized exception, we conclude the admission of those statements was harmless error in that they could not have influenced the jury\u2019s decision.\nFor example, defendant assigns error to Gwendolyn Spencer\u2019s testimony that when the brown Toyota was parked in the trailer park, the passenger in the car told her his name was \u201cDarby.\u201d Assuming arguendo that this statement was hearsay, we conclude that it could not have been prejudicial to defendant since there was sufficient other evidence that Darby Wood was the passenger in the vehicle.\nDefendant next assigns error to Ms. Spencer\u2019s testimony that she heard Swindell say that \u201c[h]e didn\u2019t have any money\u201d and that Wood \u201ctold Steve [Swindell] to speak up for his gun because he knew that was his father\u2019s gun.\u201d We conclude these statements were not hearsay in that they were not introduced to prove the truth of the matter asserted. Even assuming arguendo that these statements were hearsay, they were exceptionally admissible as evidence of the plan or design of Swindell and Wood. See N.C.G.S. \u00a7 8C-1, Rule 803(3) (1992). The statements tend to show that the purpose of their visit to the trailer park was to negotiate with defendant for the return of the gun.\nDefendant also assigns error to Kerry Spencer\u2019s testimony that when he passed by the brown Toyota, the driver asked him if he had seen \u201cBoLo\u201d and if he knew where he was. Kerry Spencer also testified that the driver asked him if he had any \u201ccoke.\u201d Again, we conclude that these statements were not hearsay since they were not offered to prove the truth of the matter asserted.\nLater, Mr. Spencer testified to a further conversation between defendant, Swindell, and Wood. According to Mr. Spencer\u2019s testimony, Swindell and Wood had come back to the trailer park to negotiate with defendant about the return of the gun. Swindell and Wood made statements to the effect that they had additional money, that the gun belonged to Wood\u2019s father, that Wood was not an undercover policeman, and that Wood would try to get some additional money. We conclude these statements by Swindell and Wood were not offered for the purpose of proving the matters asserted. Even assuming arguendo that they were hearsay, they were admissible under Rule 803(3) as statements of their \u201cintent, plan, motive [or] design.\u201d This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in denying his motion to suppress his inculpatory statement.\nWhen a defendant is in custody at the time he confesses, the State must prove, by a preponderance of the evidence, that the procedural safeguards of Miranda have been followed and that the statement was voluntary. State v. Thibodeaux, 341 N.C. 53, 58, 459 S.E.2d 501, 505 (1995).\nThe State\u2019s evidence on voir dire regarding defendant\u2019s confession consisted of the testimony of SBI Agent Varnell and Sheriff Mason. Varnell testified that on 29 December 1994, around 10:00 a.m., he and Deputy Sheriff Dees (who died before the trial) spoke with defendant, who was under arrest at that time, at his home. Varnell testified that he advised defendant of his Miranda rights and that defendant indicated he understood those rights. Subsequently, while defendant was being questioned, he indicated that he thought he could show the officers where the gun was located and agreed to do so. Agent Varnell stated that defendant appeared to be in control of his faculties and not to be under the influence of any substance. He further stated that no threats, promises, or other coercion or inducements were made to defendant.\nSheriff Mason testified that he was sitting on the porch when Deputy Dees came out and told him that defendant was volunteering to locate the gun. Sheriff Mason further testified that defendant was not handcuffed at the time, was not questioned in the vehicle, and appeared to be acting voluntarily. Sheriff Mason stopped the car when defendant said to \u201cpull over.\u201d\nA review of the voir dire testimony reveals that there was sufficient competent evidence before the trial court to support its findings, which compelled its conclusion that defendant\u2019s statement was voluntary. The testimony of both SBI Agent Varnell and Sheriff Mason shows that defendant was fully informed of his rights, that he understood them, and that he voluntarily accompanied Sheriff Mason to locate the gun.\nDefendant also argues that unless an in-custody interrogation is electronically recorded, it should be presumed that defendant\u2019s statements are not voluntary. This Court has ruled against requiring the recordation of in-custody interrogation; thus, there is no presumption in North Carolina against the admissibility of statements obtained during in-custody interrogations. See State v. Thibodeaux, 341 N.C. 53, 459 S.E.2d 501.\nFor the foregoing reasons, this assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in denying his motions to dismiss and for a directed verdict because of the insufficiency of the evidence. When considering a motion to dismiss for insufficiency of the evidence, the trial court must determine whether there is substantial evidence of each element of the offense charged and of the defendant being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence. State v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1991).\nIn the present case, there was overwhelming evidence of defendant\u2019s guilt of the crimes of which he was convicted. Two of his three accomplices provided detailed eyewitness testimony. Various witnesses also placed the murder weapon in defendant\u2019s hand before, during, and after the killings. The scientific evidence showed conclusively that the bullets recovered from the victims\u2019 bodies were fired from that weapon. Catherine Gibbs and Victor Spencer, longtime friends of defendant\u2019s, also testified that immediately upon returning to the trailer park with the others, defendant confessed to them that he had committed the murders. Thus, there was substantial evidence tending to show that defendant had committed the crimes charged. Accordingly, the trial court did not err in denying defendant\u2019s motions to dismiss and for a directed verdict. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred when it failed to intervene ex mero mo tu during the prosecutor\u2019s closing arguments. Because defendant did not object to any of these arguments, we review them only for gross impropriety. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nDefendant first says that the prosecutor made several improper comments regarding the credibility of the State\u2019s witnesses. Defendant argues that the folio-wing excerpts from the prosecutor\u2019s remarks demonstrate this error:\nWhy not make up that he\u2019s the one that tried to cut Darby Wood\u2019s throat? Why not say that he\u2019s the one that threw the gun? She [Gwendolyn Spencer] could have done all of that, ladies and gentlemen, but she didn\u2019t because what she told you is what she remembers, and that\u2019s the truth, and you\u2019ll have to judge that for yourself, ladies and gentlemen.\nDid she look like she was telling something that was not the truth? Just like what everybody else says, ladies and gentlemen, the same thing.\n... He [Kerry Spencer] tells you about cutting Darby Woods, ladies and gentlemen. If he\u2019s going to lie that is something to lie about, ladies and gentlemen.\nWe believe that these comments \u201cwere more in the nature of giving reason why the jury should believe the State\u2019s evidence than that the prosecuting attorney was vouching for the credibility of the State\u2019s witnesses.\u201d State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d 462, 464 (1994). None of the statements complained of by defendant were so grossly improper that the trial court should have intervened ex mero mo tu.\nDefendant next says that the prosecutor\u2019s comments to the effect that Kerry Spencer had not attempted to cut Darby Wood\u2019s throat with a razor were improper. We disagree. The pathologist testified that Wood had some scratches on his neck that might have been caused by a dull tool. It is therefore a permissible inference from the evidence that the marks on Wood\u2019s neck were not made by a razor. Counsel are permitted to argue the facts based on evidence which has been presented as well as reasonable inferences to be drawn therefrom. State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986).\nDefendant also complains that the prosecutor injected his personal beliefs as to why defense counsel did not have Kerry Spencer read the contents of a letter into evidence:\nIf there was something in that letter that said [defendant] wasn\u2019t guilty of this crime that letter would have been read to you from the witness stand and you would have heard everything in it.\n\u201cIt is well established that a prosecutor may comment on a defendant\u2019s failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State.\u201d State v. Morston, 336 N.C. 381, 406, 445 S.E.2d 1, 15 (1994). Thus, we conclude it was not impermissible for the prosecutor to argue that if the contents of the letter had been favorable to defendant, the witness would have been asked to read it.\nDefendant next complains that the prosecutor injected matters outside the record. Specifically, the prosecutor made repeated statements about the victims being robbed. Defendant was charged with the robbery of both Wood and Swindell; however, the jury found defendant not guilty as to these charges. Therefore, any such comments to the jury could not possibly have prejudiced defendant.\nFinally, defendant complains that the prosecutor misstated the law to the jury regarding the theory of acting in concert. The jury rejected the theory of acting in concert and found defendant guilty of murder based on premeditation and deliberation. Therefore, we conclude that these comments could not have prejudiced defendant.\nFor the foregoing reasons, this assignment of error is overruled.\nDefendant received a fair trial, free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "MITCHELL, Chief Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.", "Margaret Creasy Ciardellafor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEVERNE BURRUS\nNo. 183A95\n(Filed 31 July 1996)\n1. Jury \u00a7 110 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 individual voir dire denied\nThe trial court did not abuse its discretion in a prosecution arising from a murder and robbery by denying defendant\u2019s motion for individual voir dire of prospective jurors where three prospective jurors made statements that they were predisposed to convict defendant, there is no indication that any other juror was influenced by their comments and all three were summarily dismissed or excused for cause.\nAm Jur 2d, Jury \u00a7 198.\n2. Jury \u00a7 115 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 rehabilitation of certain jurors denied \u2014 speculation as to rehabilitation \u2014 no error\nThere was no abuse of discretion in a first-degree murder prosecution in not allowing defendant to rehabilitate certain prospective jurors where defendant, at most, speculated that by further examination he might have rehabilitated the jurors.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\n3. Criminal Law \u00a7 76 (NCI4th)\u2014 first-degree murder \u2014 change of venue denied \u2014 no error\nThe trial court did not abuse its discretion in a first-degree murder prosecution by denying defendant\u2019s motion for a change of venue based on pretrial publicity where the trial court stated, after ten jurors had been selected, that only one had indicated that he had some opinion at a former time and that the rest did not have an opinion, and several had expressed only the vaguest knowledge of the case. Moreover, defense counsel expressly admitted in his argument to the trial court that his motion was not based on pretrial publicity. Defendant failed to identify a single juror objectionable to him who sat on the jury and did not carry his burden of showing a specific and identifiable prejudice requiring a change of venue.\nAm Jur 2d, Criminal Law \u00a7\u00a7 361 et seq.\nPretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.\nChange of venue by state in criminal case. 46 ALR3d 295.\n4. Jury \u00a7 203 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 former deputy sheriff \u2014 prior discussions of case\u2014 challenge for cause denied\nThe trial court did not err during jury selection for a first-degree murder prosecution by denying defendant\u2019s motion to excuse a prospective juror for cause where the juror stated that he was a former deputy sheriff, that he had discussed the case on several occasions, and that if one fact he was aware of became an aspect in the case it would have a strong impact on him and substantially impair his ability to make a fair and impartial decision, but upon further questioning stated clearly and unequivocally that he could put out of his mind what he had heard before and decide the case solely on what he heard in the courtroom.\nAm Jur 2d, Jury \u00a7\u00a7 289, 291-294, 308.\nFormer law enforcement officers as qualified jurors in criminal cases. 72 ALR3d 958.\n5. Evidence and Witnesses \u00a7 2817 (NCI4th)\u2014 first-degree murder \u2014 leading questions \u2014 directing attention toward matter being addressed\nThe trial court did not err in a first-degree murder prosecution in allowing the State to ask questions which defendant contends were leading. Defendant did not object at trial to the majority of the questions; reviewed under the plain error standard with the overwhelming evidence against defendant, it cannot reasonably be believed that the questions resulted in error so fundamental that justice cannot have been done. The two questions to which defendant objected at trial merely directed the witness toward the specific matter being addressed without suggesting the desired answer. However, assuming that the questions were leading, there was no abuse of discretion in allowing the questions to be asked and answered.\nAm Jur 2d, Witnesses \u00a7\u00a7 752-756.\n6. Evidence and Witnesses \u00a7 850 (NCI4th)\u2014 first-degree murder \u2014 testimony not hearsay \u2014 not prejudicial\nThe trial court did not err in a first-degree murder prosecution by overruling objections to testimony which defendant contended was impermissible hearsay. The specific statements complained of either were not hearsay or were admissible under a recognized exception to the hearsay rule. Furthermore, even assuming that any statements were hearsay and not admissible under any recognizable exception, admission of the statements was harmless error because they could not have influenced the jury\u2019s decision.\nAm Jur 2d, Evidence \u00a7\u00a7 668-703; Homicide \u00a7\u00a7 329 et seq.\n7. Evidence and Witnesses \u00a7 1242 (NCI4th)\u2014 first-degree mnrder \u2014 voluntarily showing officers the murder weapon \u2014 in custody \u2014 warnings given \u2014 no error\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s motion to suppress his inculpatory statement where an SBI agent and a deputy sheriff spoke with defendant at his home while defendant was under arrest; defendant was advised of his Miranda rights and indicated that he understood those rights; defendant subsequently indicated during questioning that he thought he could show the officers where the gun was located and agreed to do so; defendant appeared to be in control of his faculties and did not appear to be under the influence of any substance; no threats, promises, or other coercion or inducements were made to defendant; the sheriff testified that he was sitting on the porch when the deputy came out and told him that defendant was volunteering to locate the gun; defendant was not then handcuffed, was not questioned in the vehicle, and appeared to be acting voluntarily; and the sheriff stopped the car when defendant said to pull over. The testimony shows that defendant was fully informed of his rights, that he understood them, and that he voluntarily accompanied the sheriff to locate the gun.\nAm Jur 2d, Criminal Law \u00a7\u00a7 785, 788 et seq.; Evidence \u00a7\u00a7 643, 644.\n8. Evidence and Witnesses \u00a7 1356 (NCI4th)\u2014 first-degree murder \u2014 inculpatory statements \u2014 electronic recording not required\nThere was no error in a first-degree murder prosecution in the admission of inculpatory statements which were not electronically recorded. The North Carolina Supreme Court has ruled against requiring the recordation of in-custody interrogation; thus, there is no presumption in North Carolina against the admissibility of statements obtained during in-custody interrogations.\nAm Jur 2d, Evidence \u00a7 718.\n9.Homicide \u00a7 230 (NCI4th)\u2014 first-degree murder \u2014 evidence sufficient\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s motions to dismiss and for a directed verdict based on insufficient evidence. There was overwhelming evidence of defendant\u2019s guilt; two of three accomplices provided detailed eyewitness testimony, various witnesses placed the murder weapon in defendant\u2019s hand during and after the killings, scientific evidence showed conclusively that the bullets recovered from the bodies were fired from that weapon, and long-time friends of defendant testified that defendant confessed to them that he had committed the murders.\nAm Jur 2d, Homicide \u00a7\u00a7 425 et seq.\n10. Criminal Law \u00a7 439 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 credibility of State\u2019s witnesses\nThere was no gross impropriety in a first-degree murder prosecution where the trial court did not intervene ex mero mo tu during the prosecutor\u2019s closing argument regarding the credibility of the State\u2019s witnesses. The comments were more in the nature of giving the jury reason to believe the State\u2019s evidence than vouching for the credibility of the State\u2019s witnesses.\nAm Jur 2d, Trial \u00a7\u00a7 692-704.\nPropriety and prejudicial effect of comments by counsel vouching for credibility of witness \u2014 state cases. 45 ALR4th 602.\n11. Criminal Law \u00a7 460 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 permissible inferences\nThere was no gross impropriety in a first-degree murder prosecution where the prosecutor in his argument commented that an accomplice who testified against defendant had not attempted to cut a victim\u2019s throat with a razor. The pathologist testified that the victim had some scratches on his neck that might have been caused by a dull tool; it is therefore a permissible inference that the marks were not made by a razor. '\nAm Jur 2d, Trial \u00a7\u00a7 632-639.\n12. Criminal Law \u00a7 425 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 defendant\u2019s failure to introduce letter\nThere was no gross impropriety in a first-degree murder prosecution where the prosecutor argued that a letter would have been read from the witness stand if it was exculpatory. A prosecutor may comment on a defendant\u2019s failure to produce exculpatory evidence to contradict or refute evidence presented by the State.\nAm Jur 2d, Trial \u00a7\u00a7 605, 606.\n13. Criminal Law \u00a7 461 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 matters outside record \u2014 no prejudice\nThere was no gross impropriety in a first-degree murder prosecution where defendant contended that the prosecutor injected matters outside the record in repeating statements about the victims being robbed; however, the jury found defendant not guilty as to the robbery charges and any such comments could not possibly have prejudiced defendant.\nAm Jur 2d, Trial \u00a7\u00a7 609 \u00e9t seq.\n14. Criminal Law \u00a7 465 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 misstatement of law \u2014 no prejudice\nThere was no prejudice in a first-degree murder prosecution where defendant complained that the prosecutor misstated the law regarding acting in concert, but the jury rejected that theory and found defendant guilty of murder based on premeditation and deliberation. These comments could not have prejudiced defendant.\nAm Jur 2d, Trial \u00a7\u00a7 640 et seq.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from judgments imposing consecutive sentences of life imprisonment entered by Griffin, J., on 21 September 1994 in Superior Court, Hyde County, upon jury verdicts finding defendant guilty of two counts of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to his appeal from his conviction for conspiracy to commit robbery with a dangerous weapon was allowed 8 September 1995. Heard in the Supreme Court on 9 April 1996.\nMichael F. Easley, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.\nMargaret Creasy Ciardellafor defendant-appellant." }, "file_name": "0079-01", "first_page_order": 111, "last_page_order": 127 }