{ "id": 53905, "name": "STATE OF NORTH CAROLINA v. PHILLIP WAYNE JULIAN", "name_abbreviation": "State v. Julian", "decision_date": "1997-03-07", "docket_number": "No. 408A95", "first_page": "608", "last_page": "614", "citations": [ { "type": "official", "cite": "345 N.C. 608" } ], "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": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "340 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "357", "parenthetical": "quoting N.C.G.S. \u00a7 8C-1, Rule 403 commentary (Supp. 1985)" } ], "opinion_index": 0 }, { "cite": "315 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714140 ], "year": 1986, "pin_cites": [ { "page": "772", "parenthetical": "quoting N.C.G.S. \u00a7 8C-1, Rule 403 commentary (Supp. 1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0762-01" ] }, { "cite": "108 L. Ed. 2d 601", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4944, 5169, 5111, 5052, 5183 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1021-01", "/us/494/1021-04", "/us/494/1021-02", "/us/494/1021-03", "/us/494/1021-05" ] }, { "cite": "372 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564716 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0068-01" ] }, { "cite": "423 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "333 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548569 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/333/0128-01" ] }, { "cite": "468 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "343 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798779 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0029-01" ] }, { "cite": "291 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "627", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "305 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573188 ], "year": 1982, "pin_cites": [ { "page": "754", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0747-01" ] }, { "cite": "476 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "361", "parenthetical": "quoting State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) (alteration in original)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867652 ], "year": 1996, "pin_cites": [ { "page": "537", "parenthetical": "quoting State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) (alteration in original)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0511-01" ] }, { "cite": "470 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "42", "parenthetical": "quoting N.C.G.S. \u00a7 15A-1061 (1988)" } ], "opinion_index": 0 }, { "cite": "343 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798787 ], "year": 1996, "pin_cites": [ { "page": "237", "parenthetical": "quoting N.C.G.S. \u00a7 15A-1061 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0229-01" ] }, { "cite": "224 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "290 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560084 ], "year": 1976, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0016-01" ] } ], "analysis": { "cardinality": 719, "char_count": 13377, "ocr_confidence": 0.752, "pagerank": { "raw": 4.4265276719536815e-08, "percentile": 0.2772889461895269 }, "sha256": "1fd3384b885b5f11117f334155c666b3ee5b7d2e92eb5f5bd8951bc6aebb934a", "simhash": "1:c37fd3667e6e4cf5", "word_count": 2169 }, "last_updated": "2023-07-14T16:52:16.077233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. PHILLIP WAYNE JULIAN" ], "opinions": [ { "text": "FRYE, Justice.\nUpon proper indictment, Phillip Wayne Julian (defendant), was tried and convicted of murder in the first degree of his estranged wife, Dena Pierce Julian (Pierce). At the capital sentencing proceeding, the jury did not find the existence of the sole aggravating circumstance submitted and thus recommended a sentence of life imprisonment. On 4 May 1995, Judge William Z. Wood, Jr. entered a judgment imposing a sentence of life imprisonment.\nOn appeal to this Court, defendant brings forward two assignments of error. After reviewing the record, transcript, and briefs in this case, we conclude that defendant received a fair trial, free of prejudicial error.\nThe State\u2019s evidence presented at trial tended to show the following facts and circumstances. Defendant and Pierce married in June 1989, when Pierce was eighteen years old and defendant was twenty-five years old. During their marriage, defendant repeatedly beat Pierce, and she moved in with her mother on several occasions. After Pierce and defendant separated in February 1993, defendant continued to harass and threaten her even though she had secured a restraining order after moving in with her mother. On 2 June 1993, defendant went to Pierce\u2019s mother\u2019s home, told their two children to go outside, and repeatedly stabbed Pierce. She died as a result of loss of blood from multiple stab wounds.\nDefendant did not testify at trial but presented the testimony of thirteen witnesses during the guilt/innocence phase of the trial. Among these witnesses was Dr. Billy Royal, an expert witness in forensic psychiatry. Dr. Royal testified that he evaluated defendant and made diagnoses of mild mental retardation, alcohol addiction and dependency currently in remission, adjustment disorder with disturbance of emotion and conduct, cocaine addiction in remission, major depression and chronic depression, personality disorder with obsessive paranoid dependent borderline features, anxiety disorder and chronic diabetes. In Dr. Royal\u2019s opinion, defendant was not able to rationally contemplate what he was doing and did not understand the consequences of his actions on 2 June 1993.\nBy an assignment of error, defendant contends that the trial court erred by not declaring a mistrial and by failing to individually question a juror about her fitness to continue jury service after the juror requested that she be relieved of her jury duties. We disagree.\nThe presiding judge is vested with broad discretion in matters relating to the conduct of the trial. State v. Rhodes, 290 N.C. 16, 23, 224 S.E.2d 631, 635 (1976). \u201cUpon a defendant\u2019s motion, the trial court must declare a mistrial \u2018if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u2019 \u201d State v. Howell, 343 N.C. 229, 237, 470 S.E.2d 38, 42 (1996) (quoting N.C.G.S. \u00a7 15A-1061 (1988)). \u201c[A] mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.\u201d State v. Norwood, 344 N.C. 511, 537, 476 S.E.2d 349, 361 (1996) (quoting State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) (alteration in original)).\nIn State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996), we said:\nIt is well settled that a motion for a mistrial and the determination of whether defendant\u2019s case has been irreparably and substantially prejudiced is within the trial court\u2019s sound discretion. State v. Williamson, 333 N.C. 128, 423 S.E.2d 766 (1992). The trial court\u2019s decision in this regard is to be afforded great deference since the trial court is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable. Id. at 138, 423 S.E.2d at 772.\nKing, 343 N.C. at 44, 468 S.E.2d at 242. The scope of our review, then, is to determine whether the trial court abused its discretion in denying defendant\u2019s motion.\nIn the instant case, the court reconvened following an overnight recess. After ascertaining that all jurors were present in the courtroom, the trial judge excused the jurors so he could \u201cdiscuss a matter with the attorneys\u201d and told them not to resume deliberations until they had received the verdict sheet. Outside the presence of the jury, the trial court stated, \u201cI have a note here, gentlemen, from one of [the] jurors.\u201d The note from juror Liberatore read as follows:\nI regret to admit that I\u2019m not able to handle someone\u2019s fate being in my hands. I could not see this coming or I certainly would have expressed this at the onset of this case. I\u2019ve been emotionally distraught and physically ill since yesterday afternoon when the moment of decision arrived.\nI respectfully request that I be dismissed from my duties and an alternate replace me. My sincere apology to all involved.\nDefendant argues that it is possible that some event occurred compromising this juror\u2019s impartiality and causing her to write this note. Defendant also argues that the trial court did not take satisfactory steps to ensure that this juror was capable of impartially and fairly participating in further deliberations. Therefore, defendant contends that the trial court abused its discretion in overruling his motion for a mistrial.\nWe note that the trial court, after discussing the matter with the attorneys, informed the jurors that it was without authority to \u201cexcuse any juror after the deliberations are begun,\u201d see N.C.G.S. \u00a7 15A-1215(a) (1988), and instructed the jurors to \u201cdecide the case for [themselves] ... after an impartial consideration of the evidence with [their] fellow jurors.\u201d Following the court\u2019s instructions, defense counsel stated that there were no further instructions or requests and purportedly renewed the motion for mistrial. The jury then resumed deliberations and returned a verdict of guilty of first-degree murder. After the clerk read the jury\u2019s verdict, the jurors were individually polled, and juror Liberatore showed no uncertainty as to her verdict of guilty.\nWe conclude that no abuse of discretion attended the trial court\u2019s ruling with respect to defendant\u2019s motion here. The trial court properly admonished the jurors not to \u201csurrender [their] honest conviction as to the weight or effect of the evidence solely because of the opinion of [their] fellow jurors or for the mere purpose of returning a verdict,\u201d and there is no indication either in the record or in defendant\u2019s argument that the court\u2019s instructions were not followed. There is no indication that juror Liberatore\u2019s ability to be impartial was impaired, and defendant has not shown that he did not receive the treatment that the law requires. Thus, neither prejudice nor abuse of discretion has been shown. See State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990). Accordingly, we hold that the trial court did not abuse its discretion in denying defendant\u2019s motion for mistrial.\nBy another assignment of error, defendant contends that the trial court erred by excluding highly probative evidence bearing on his mental state at the time of the offense.\nAt trial, defendant attempted to introduce testimony by his cousin, Joyce .Webster, regarding rumors she had heard at her place of employment about Pierce\u2019s sexual relations with a black man and possible drug use. Defendant argues that this testimony was highly probative of his state of mind at the time of the murder and that it should have been admitted to help prove his diminished capacity. Defendant contends this evidence may have \u201ctipped the scales\u201d in favor of a conviction of second-degree murder.\nThe State, however, contends that the trial court did not err in excluding this evidence of rumor and speculation pursuant to Rule 403 of the North Carolina Rules of Evidence. The State argues that \u201c[djefendant was able to present evidence of his diminished capacity without resorting to evidence of rumors and appeals to racial prejudice that did not meet the requirements of the rules of evidence.\u201d\nRule 403 of the North Carolina Rules of Evidence provides:\nAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\nN.C.G.S. \u00a7 8C-1, Rule 403 (1992). Relevant evidence is properly admissible unless the judge determines that it must be excluded, for instance, because of \u201cunfair prejudice, confusion of the issues, or misleading the jury.\u201d Id. \u201c \u2018Unfair prejudice,\u2019 as used in Rule 403, means \u2018an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.\u2019 \u201d State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986) (quoting N.C.G.S. \u00a7 8C-1, Rule 403 commentary (Supp. 1985)). \u201cIn general, the exclusion of evidence under the balancing test of Rule 403 of the North Carolina Rules of Evidence is within the trial court\u2019s sound discretion.\u201d State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).\nIn the instant case, the trial court, after conducting an extensive voir dire of Webster and listening to arguments of counsel, ruled on the admissibility of the evidence by stating, \u201cWhat we\u2019re going to do at this time is exclude it[,] as [its] probative value ... is substantially outweighed by the danger of unfair prejudice and misleading of the issues and confusion to the jury.\u201d The next day, defendant asked the court to reconsider its ruling. When the trial court denied defendant\u2019s request, defendant requested more specific findings of fact to support its ruling. The court stated:\nThe only unfair prejudice to the State is racial in nature, that it inflames the passions of the jury to prove unfounded allegations that [the victim] was using drugs when there\u2019s no evidence whatsoever of that. It\u2019s inflaming the passions of the jury in a racial manner to use bigotry and prejudice to secure a verdict in this case rather than the law and the facts.\nWe conclude that the trial court did not abuse its discretion in excluding Webster\u2019s testimony about rumors she had heard at her place of employment regarding the victim. The trial court could find, in its discretion, that this evidence was being offered to unfairly prejudice the State, to confuse the issues, and to mislead the jury by inflaming the jury\u2019s passions against the victim by implying that she was involved in an interracial relationship and that she was a drug user. Accordingly, we reject this assignment of error.\nFor the foregoing reasons, we hold that defendant received a fair trial, free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Gail E. Weis, Assistant Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP WAYNE JULIAN\nNo. 408A95\n(Filed 7 March 1997)\n1. Criminal Law \u00a7 547 (NCI4th Rev.)\u2014 first-degree murder\u2014 juror\u2019s request to be replaced \u2014 denied\nThe trial court did not abuse its discretion in a capital first-degree murder prosecution (with a life sentence) by not declaring a mistrial and by not individually questioning a juror about her fitness to continue jury service after the juror requested that she be relieved of her jury duties, stating that she was emotionally distraught and physically ill and that she was \u201c. . . not able to handle someone\u2019s fate being in her hands.\u201d The trial court properly admonished the jurors not to surrender their honest convictions and there is no indication that the court\u2019s instructions were not followed. There is no indication that the juror\u2019s ability to be impartial was impaired and defendant has not shown that he did not receive the treatment that the law requires; thus, neither prejudice nor abuse of discretion has been shown.\nAm Jur 2d, Trial \u00a7\u00a7 1703, 1708, 1713.\n2. Evidence and Witnesses \u00a7 179 (NCI4th)\u2014 murder of estranged spouse \u2014 evidence of interracial sexual relations \u2014 excluded\nThe trial court did not err in the prosecution of defendant for the first-degree murder of his estranged wife by excluding testimony regarding rumors concerning the victim\u2019s sexual relations with a black man and possible drug use where defendant argued that this testimony was highly probative of state of mind and should have been admitted to help prove diminished capacity because it may have tipped the scales toward second-degree murder. The trial court could, in its discretion, find that this evidence was being offered to unfairly prejudice the State, to confuse the issues, and to mislead the jury by inflaming the jury\u2019s passions against the victim by implying that she was involved in an interracial relationship and that she was a drug user. N.C.G.S. \u00a7 8C-1, Rule 403.\nAm Jur 2d, Evidence \u00a7\u00a7 331, 333, 373; Homicide \u00a7\u00a7 283, 301, 307.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Wood, J., at the 16 April 1995 Criminal Session of Superior Court, Randolph County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 13 February 1997.\nMichael F. Easley, Attorney General, by Gail E. Weis, Assistant Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0608-01", "first_page_order": 662, "last_page_order": 668 }