State v. Ross

Justice MARTIN

dissenting.

I dissent from the holding of the majority that defendant is entitled to a new trial of this double murder case because of the failure of the trial judge to instruct the jury in accord with N.C.P.I. — Crim. 101.30. See N.C.G.S. § 8-54 (1986); State v. Randolph, 312 N.C. 198, 321 S.E. 2d 864 (1984).

It is to be noted that this issue applies only to the guilt phase of the trial as defendant testified at the sentencing hearing, relating many inculpatory statements.

The state concedes that this failure by the trial judge was error but insists that the error was harmless beyond a reasonable doubt. Failure to so instruct upon timely request by defendant has been held to violate defendant’s rights under the United States Constitution. Carter v. Kentucky, 450 U.S. 288, 67 L.Ed. 2d 241 (1981).

Defendant also enters the harmless error battleground in his brief, and the majority opinion turns upon that issue. The United States Supreme Court has never held that this instructional error was not subject to a harmless error analysis; therefore it is appropriate for this Court to apply a harmless error analysis. We *270are required to be satisfied beyond a reasonable doubt that the constitutional error complained of did not contribute to the verdict obtained. Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, reh’g denied, 386 U.S. 987, 18 L.Ed. 2d 241 (1967); N.C.G.S. § 15A-1443(b) (1983).

In my view the state has the better side of the dispute. It has long been held by this Court that it is the better practice not to instruct on defendant’s failure to testify, absent a specific request by defendant. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Bryant, 283 N.C. 227, 195 S.E. 2d 509 (1973). This is true because such instructions emphasize to the jurors the fact that defendant did not testify. The reason for the rule not allowing comment on defendant’s failure to testify is to assure a fair trial to defendant. Here, it is clear to me that defendant received a fair trial; defendant did not testify and no one commented or alluded to this fact. The failure of the trial judge to give the requested instruction could not have contributed in any way to the verdict.

Not only was defendant’s trial fair, but no reasonable jury could fail to convict defendant of murder in the first degree on the mass of evidence arrayed against him. Defendant’s homosexual relationship with several teenage boys in the neighborhood was fully established. Defendant maintained this relationship in part by the payment of money to the boys. The Buchanan boy realized that defendant was susceptible to extortion. Tensions were created that led to violence.

After the crimes defendant attempted to “cover up” and remove evidence of his guilt by cleaning carpet and trying to buy a new carpet to replace the one stained by the blood of his victims. Even more damning evidence was defendant’s statements to the officers telling them where to look for the bodies, which were found in the grease pit. He further gave permission for the search of his house, where the murder pistol was found hidden behind some books. The bullets that caused the deaths of the two boys were fired from defendant’s pistol. Gary Bailey was shot in the head, back, and abdomen; Richard Buchanan was shot twice in the brain at contact range and also in the back and arm. Blood on the pistol was identified as being from Buchanan, and sticking to that blood was head hair from him and pubic hair from the de*271fendant indicating that defendant executed Buchanan while engaged in a homosexual act with him.

When balanced against the trial judge’s instructional error, the evidence of defendant’s guilt engulfs him beyond any reasonable doubt. There is no reasonable basis to find that the trial judge’s error contributed to the verdicts of guilty of murder in the first degree. The only other possible verdicts were murder in the second degree and not guilty. If this issue were applicable to the punishment phase of the trial, defendant’s argument might be somewhat more persuasive, but such is not the case here.

Despite the best efforts of the majority, I can find no rational basis to hold that the error contributed to the verdict of guilt and am convinced beyond a reasonable doubt that the error was harmless.

Justice WHICHARD joins in this dissenting opinion.