State v. Thomas

ELMORE

Appeal by defendant from judgment entered 7 October 2011 by Judge Michael J. O'Foghludha in Alamance County Superior Court. Heard in the Court of Appeals 30 January 2013. Kathryn L. VandenBerg for defendant. Attorney General Roy Cooper, by Special Deputy Attorney General Burem R. Shields, III, for the State.
ELMORE, Judge.

Alphonza Thomas (defendant) appeals from judgments entered upon jury convictions of first-degree murder and first-degree arson. Defendant was sentenced to life in prison without possibility of parole to be followed by a term of 63–85 months imprisonment. After careful consideration, we find no error.

On 1 February 2010, defendant's wife, Marie Thomas, was found dead in the kitchen of her marital home from apparent blunt head injuries. Some time soon after her death, the home was set on fire. Responding firefighters first discovered her body, which was mostly spared from burn damage. After being questioned by police about his wife's murder and an initial investigation into the killing and the fire, a warrant was issued for defendant's arrest. Defendant was indicted on one count of first-degree murder and one count of first-degree arson on 15 February 2010.

The police investigation revealed the existence of an accessory and co-defendant, Ron Carroll. In addition to listening to defendant confide details regarding his plans to kill his wife, Carroll also assisted defendant with various tasks leading up to the murder. Although Carroll was present during the time immediately preceding the murder, Carroll had no involvement with the actual slaying of Marie. Prior to trial, Carroll entered into a plea agreement with the State in exchange for his cooperation and testimony.

The State opted not to pursue capital punishment, and jury selection commenced. The following facts surrounding the jury selection proceedings and certain questions during cross-examination form the central issues of defendant's appeal. The presiding trial judge, citing “irregularities” with the previous day's jury selection and inconsistency with procedures prescribed by N.C. Gen.Stat. § 15a–1214, ordered all parties to start selection proceedings over with a new panel of jurors.

Early in the proceedings, defense counsel asked the following question to the panel: “Would any of you give the testimony of a law enforcement officer greater weight than you would anyone else just because they're a law enforcement officer?” Three potential jurors indicated they would. Defense counsel moved to have each of these jurors removed for cause, a request which the trial court denied after the jurors stated that they were able to follow the law despite their answers to the question. Defense counsel further explored this line of questioning with other members of the panel, received similar responses, and had similar results when attempting to remove the jurors for cause. By the time a jury was picked, defendant had exercised eight peremptory challenges, most of which were in response to a juror's apparent willingness to view the testimony of law enforcement more favorably.

Later, during trial, the State began its direct examination of Detective Felts, one of the homicide investigators working on the case. While testifying, Detective Felts made reference to a polygraph examination that was administered to Carroll. Defendant successfully moved to strike this reference, but also argued that mention of a polygraph might unfairly persuade the jury that Carroll was a credible witness. In an attempt to mitigate this perceived risk, defendant unsuccessfully sought permission to cross-examine Detective Felts regarding the polygraph issue. No further curative instruction was given to the jury following the motion to strike. The jury returned guilty verdicts on both counts, and defendant now appeals.

Defendant first argues that the trial court erred when it denied his challenges for cause after several potential jurors indicated that they might view the testimony of a law enforcement official as more trustworthy than that of other witnesses. We disagree.

“The standard of review [in appeals challenging the denial of challenges for cause] is whether the trial judge abused his discretion and whether this abuse of discretion prejudiced the defendant.” State v. Campbell, 359 N.C. 644, 666, 617 S.E.2d 1, 15 (2005). With regards to appealing a trial court's decision with respect to challenges for cause, our General Statutes provide that

[i]n order for a defendant to seek reversal of the case on appeal on the ground that the judge refused to allow a challenge made for cause, he must have:

(1) Exhausted the peremptory challenges available to him;

(2) Renewed his challenge as provided in subsection (i) of this section; and

(3) Had his renewal motion denied as to the juror in question.
N.C. Gen.Stat. § 15A–1214(h). A defendant is entitled to fourteen peremptory challenges in capital cases, and six peremptory challenges in noncapital cases. N.C. Gen.Stat. § 15A–1217. Each party is also entitled to one additional challenge per alternate juror. Id. Further, “[i]f ... in a prosecution for a crime which formerly had been punishable by death that the death penalty may not be imposed upon conviction, the case loses its capital nature, thereby rendering statutes providing for an increased number of peremptory challenges in capital cases inapplicable.” State v. Barbour, 295 N.C. 66, 70, 243 S.E.2d 380, 383 (1978).

Here, the state chose not to pursue the death penalty, thus defendant was entitled to six peremptory challenges for primary jurors. Defendant exercised eight peremptory challenges in total, three of which were directed towards alternate jurors. Thus, defendant only exercised five of his six available peremptory challenges for primary jurors, and he had one available to exercise against the very jurors he claims should have been dismissed for cause. Accordingly, we dismiss defendant's argument as it is not properly before us on appeal given the fact that defendant did not exhaust his peremptory challenges at trial.

Defendant's next argument is essentially an extension of his first. He asserts that denial of the challenges for cause discussed above constituted reversible error, and that his attorney's failure to properly preserve such error at trial constitutes ineffective assistance of counsel. We decline to address this argument.

It is well established that ineffective assistance of counsel claims ‘brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i .e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.’ Thus, when this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing defendant to bring them pursuant to a subsequent motion for appropriate relief in the trial court.
State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (citation omitted) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)), cert. denied,546 U.S. 830, 163 L.Ed.2d 80 (2005).

Accordingly, since we believe that an evidentiary hearing must be held to address the validity of defendant's argument, we dismiss defendant's claim for ineffective assistance of counsel without prejudice. Defendant may file a motion for appropriate relief in the Alamance County Superior Court.

Finally, defendant argues that the trial court erred in failing to allow him to cross-examine Detective Felts with regards to Carroll's polygraph test. Defendant contends that absent a full cross-examination of the issue, the jury likely accepted knowledge of the polygraph as evidence of Carroll's credibility. As such, defendant argues that he is entitled to a new trial. We disagree.

Our Supreme Court has held that “the mere mention of polygraph testing does not necessitate appellate relief.” State v. Mitchell, 328 N.C. 705, 711, 403 S.E.2d 287, 291 (1991) (1991) (citation omitted). Further, our courts have declined to grant a new trial when evidence of a polygraph test was admitted but 1) provided “no mention of the results of [the] polygraph test, and 2) was “an attempt by the trial judge to establish a time frame as to when certain acts occurred.” See Id.

Here, during Detective Felts' testimony, she was asked by the prosecutor how many times Carroll was interviewed by police. She responded by stating: “Twice on February 3rd. February 12th at the Durham Police Department. February 23rd, when he took a polygraph examination.” We conclude that this exchange constitutes nothing more than a “mere mention” of the polygraph test. Further, it is clear from the record that the test was only mentioned in an attempt to establish some time frame of events. We also note that the results of the test were never disclosed to the jury, and the trial court granted defendant's motion to strike the mere mention of the test from the record. As such, we disagree that defendant is entitled to a new trial.

In sum, we conclude that the trial court did not err with regards to the issues concerning jury selection or the mention of the polygraph test. We dismiss without prejudice defendant's claim of ineffective assistance of counsel.

No error. Judges BRYANT and ERVIN concur.

Report per Rule 30(e).