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No. COA09-443 TWENTY-SIXTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
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v.)From Mecklenburg
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ANTWAN MAURICE SANDERS)
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BRIEF OF DEFENDANT-APPELLANT
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QUESTIONS PRESENTED
I. WHETHER THE TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY ON DURESS WHEN EVIDENCE CLEARLY SUPPORTED THAT BURRIS AND FRIDAY FORCED MR. SANDERS AT GUNPOINT TO PARTICIPATE IN THE CRIMES AND WOULD HAVE KILLED HIM HAD HE TRIED TO ESCAPE?
II. WHETHER THE TRIAL COURT VIOLATED ITS STATUTORY DUTY TO INFORM THE PROSPECTIVE JURORS OF MR. SANDERS’ ASSERTED DURESS DEFENSE, THEREBY GIVING THE JURORS A DISTORTED VIEW OF THE CASE, SLANTED IN FAVOR OF THE STATE, AND PREJUDICING THE OUTCOME OF THE TRIAL?
III. WHETHER, WHERE THE PROSECUTOR AND THE TRIAL COURT ERRONEOUSLY ADVISED MR. SANDERS THAT ANYTHING HE SAID AT THE SUPPRESSION HEARING COULD BE USED AGAINST HIM AT TRIAL, MR. SANDERS’ SUBSEQUENT WAIVER OF HIS RIGHT TO TESTIFY AT THE SUPPRESSION HEARING WAS NOT KNOWING, VOLUNTARY, OR INTELLIGENT?
IV.WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MR. SANDERS’ MOTION FOR MISTRIAL AFTER THE STATE TWICE VIOLATED THE TRIAL COURT’S ORDER FORBIDDING ANY MENTION OF POLYGRAPH EXAMINATIONS BY INTRODUCING TWO SEPARATE POLYGRAPH REFERENCES INVOLVING ITS KEY WITNESS?
V.WHETHER THE STATE REPEATEDLY CROSSED THE LINE IN CLOSING ARGUMENT BY CONTINUALLY ASSERTING THAT MR. SANDERS WAS LYING, AND THE TRIAL COURT’S FAILURE TO INTERVENE EX MERO MOTU DEPRIVED MR. SANDERS OF A FAIR TRIAL?
VI. WHETHER THE PROSECUTOR’S MISSTATEMENT OF THE LAW ON ACTING IN CONCERT CONFUSED THE JURY, RELIEVED THE STATE OF ITS BURDEN OF PROOF, AND DEPRIVED MR. SANDERS OF A FAIR TRIAL?
STATEMENT OF THE CASE
On 5 April 2004, the Mecklenburg County Grand Jury returned bills of indictment charging Mr. Sanders with two counts each of first-degree murder, first-degree sexual offense, first-degree kidnapping, and robbery with a dangerous weapon. (Rpp. 18-29)[1] On 20 June 2008, Mr. Sanders filed a motion to suppress statements. (Rpp. 38-42) On 21 July 2008, the State filed a motion to prohibit references to polygraphs. (Rpp. 65-66) Trial commenced at the 21 July 2008 Criminal Session of the Mecklenburg County Superior Court, the Honorable David S. Cayer presiding. Judge Cayer denied the motion to suppress, granted the polygraph motion, (Rpp. 47-64; Vol. IITpp. 378-95, 405) anddenied a motion for mistrial when the State introduced polygraph references. (Vol. IXTp. 2056) The jury acquitted Mr. Sanders of one count of first-degree sexual offense and returned guilty verdicts on the remaining counts. (Rpp. 132-41) The trial court arrested judgment on the robbery convictions. The court sentenced Mr. Sanders to three consecutive life terms for two counts of first-degree murder and one count of sexual offense and consecutive twelve-year terms for two counts of kidnapping. (Rpp. 146-57) Mr. Sanders gave oral notice of appeal. (Vol. XIITp. 2932)
STATEMENT OF GROUNDS FOR APPELLATE JURISDICTION
The ground for review is a final judgment of the Superior Court under N.C. Gen. Stat. §15A-1444(a).
STATEMENT OF THE FACTS
Mr. Sanders was with Robert Friday and Myron Burris on 2 June 1993 when fifteen-year-old R.C. and seventeen-year-old T.L. were kidnapped, robbed with a firearm, sexually assaulted, and murdered. (Vol. VIIITpp. 1792-93, 1798; Vol. XITp. 2582) Mr. Sanders gave pretrial notice of the duress defense. (Rpp. 36-37, 43-46) The trial court did not inform the prospective jurors that Mr. Sanders had asserted duress. (Vol. IIITpp. 435-36) At the close of trial, the trial court denied Mr. Sanders’ request to instruct the jury on duress. (Vol. XITpp. 2662-64)
On 2 June 1993, eighteen-year-old Mr. Sanders was at a friend’s house in MountHolly. Friday and Burris drove by in the early evening in Friday’s mother’s car. (Vol. XTpp. 2414-17, 2421) Burris asked Mr. Sanders if he wanted to come with them to rob a drug dealer in Charlotte. Mr. Sanders agreed. (Vol. VIIITpp. 1950-51; Vol. XTpp. 2425-26) According to Burris, he and Friday planned the robbery earlier in the day. (Vol. VIIITp. 1949)
Mr. Sanders met Burris in 1991 or 1992 when Burris moved to MountHolly to recover from a gunshot wound. Mr. Sanders and Friday knew each other, but were not friends. (Vol. XTpp. 2418-19, 2424) Burris and Friday met in the late 1980’s or early 1990’s and committed two or three robberies together. (Vol. VIIITp. 1941) Burris testified that he had a reputation as a robber of drug dealers and Friday had a reputation as a robber. Friday also had a reputation for shooting people. (Vol. IXTpp. 2091-92) In June 1993, Burris was twenty-two years old and Friday was eighteen or nineteen years old. (Vol. VIIITpp. 1939, 1945)
Both Mr. Sanders and Burris testified that they drank beer on the way to Charlotte. Burris and Friday smoked marijuana and Mr. Sanders smoked a mixture of marijuana and crack cocaine. Friday asked Mr. Sanders, “[W]hy you smoking that shit in my Mama’s car.” (Vol. VIIITp. 1955; Vol. XTpp. 2428-29)
Friday drove to the drug dealer’s apartmentbuilding. Friday and Mr. Sanders went to the drug dealer’s door while Burris stayed in the car. The drug dealer knew Burris’ reputation as a robber and would not have opened the door for him. No one answered the door and the men left. (Vol. VIIITpp. 1957-59; Vol. XTpp. 2430-32)
Once back at the car, Mr. Sanders learned that Friday had a gun. (Vol. XTp. 2432) Friday had a .32-caliber gun and Burris had a .38-caliber gun under his seat. Burris testified that Mr. Sanders did not have a gun. (Vol. VIIITp. 1956) Mr. Sanders testified that he did have a .45-caliber gun, but it was in his closed book bag on the floor of the car. (Vol. XITpp. 2544, 2580-81)
Friday and Mr. Sanders laterreturned to the drug dealer’s door and knocked, but again nobody answered. They went back to the car. Friday said, “[W]e’re going to leave...we can’t wait it out[.]” (Vol. XTp. 2432, 2434) According to Burris, they decided to go back “to Mount Holly, to Friday’s house, because the guy that we had planned to rob wasn’t home.” (Vol. VIIITp. 1959) They drove to the other side of the apartment complex, where they saw two teenage girls near the mailboxes. (Vol. VIIITpp. 1959-60; Vol. XTp. 2434)
At this point, Mr. Sanders’ and Burris’ versions diverged. According to Mr. Sanders, Friday pulled up beside the teens and started small talk with them. Burris eventually got out, stood with his arm on the door, and talked to the girls. (Vol. XTpp. 2434, 2436-37)
Burris continued to ask questions and the girlslooked at each other suspiciously. Burris then pulled out his gun, pointed it at the girls, and told them to get into the car. (Vol. XTp. 2440) Burris’ actions surprised Mr. Sanders. (Defendant’s Exh. 6 p. 102)
Mr. Sanders testified that Burris made him move over in the back seat. (Vol. XITp. 2493) The girls got in and Friday drove off. Mr. Sanders testifiedthat he did not have any conversation with Burris regarding the girls getting into the car anddid nothing to cause the girls to get into the car. (Vol. XTpp. 2440-41)
While driving, Friday and Burris talked in the front seat. Mr. Sanders could not hear them because of the radio. (Vol. XTp. 2443) Mr. Sanders further testified that at some point, Burris turned around, pointed his gun at Mr. Sanders and the girls, and told Mr. Sanders to take the girls’ jewelry. (Vol. XTpp. 2443-44;Vol. XITp. 2581) Mr. Sanders was surprised that Burris and Friday initiated a robbery and demanded his participation. (Defendant’s Exh. 6 p. 102)
Mr. Sanders took R.C.’s rings “because that’s when Mr. Burris had put the gun on me and said you know what it is now, go ahead and get that from them.” (Vol. XTp. 2444; Vol. XITp. 2581) Mr. Sanders “only joined in when I got the gun on me, when [Burris] told me you know what to do.” (Vol. XITp. 2584) Mr. Sanders gave one of the rings to Burris and kept one, which he later gave to his girlfriend. (Vol. XITpp. 2548, 2581-82) T.L. took off her necklace and handed it to Burris. (Vol. XTpp. 2443-44)
Friday pulled onto a dead-end road near a warehouse and parked. Mr. Sanders had never been there before. (Vol. XTpp. 2445-46) Burrisgrabbed T.L. with his gun, “snapped her out of the car,” andtook her in front of the car. Mr. Sanders could not see them because it was dark. (Vol. XTpp. 2446, 2448-49)
Friday got out, pointed his gun, and told R.C. to get out. Mr. Sanders could not tell if Friday pointed the gun at him or R.C., so he pulled R.C. out when he got out. (Vol. XTp. 2447) R.C. held on to Mr. Sanders. When Friday pointed the gun at Mr. Sanders again, Mr. Sanders let R.C. go. Friday “snatched [R.C.] and pulled her in front of the car.” (Vol. XTpp. 2447, 2449) Mr. Sanders was scared when Friday pointed the gun at him and felt confused because Friday had “flipped” on him. (Vol. XTpp. 2449-50)
Friday cussed at R.C. andtold her to take off her clothes and give Mr. Sanders oral sex. Mr. Sanders did not receive oral sex from R.C. He grabbed her and put her head on his belly while Friday raped her “[t]o make [Friday] think that she was doing something, felt like I had cooperated. Probably shot me out there.” (Vol. XTpp. 2450-51)
Mr. Sanders was scared because his life was in danger. He knew Friday would have shot him. Mr. Sanders never told Friday tostop because Friday had a gun on him and he knew that Friday was “trigger happy.” (Vol. XTp. 2451)
After a few minutes, Mr. Sanders pushed R.C. off of him. Friday grabbed R.C. and walked her towards the fields. (Vol. XTp. 2452) Mr. Sanders got back in the backseat of the car. (Vol. XTp. 2455)
A few minutes later, Mr. Sanders heard four shots. He closed his eyes because he knew the girls were dead. He contemplated running, but did not. (Vol. XTp. 2456) He knew that if he had tried to stop Friday and Burris, he “wouldn’t be here talking to you today.” (Vol. XITp. 2585)
Friday and Burris returned to the car in less than a minute. (Vol. XTp. 2457) Mr. Sanders asked, “[W]hy y’all shoot them girls?” Friday turned around, hit Mr. Sanders with his gun, andsaid, “If you get out and you say something...we’re going to burn you next.” Mr. Sanders started to cry because the girls were dead and he was scared. (Vol. XTpp. 2458-59)
An autopsy revealed that R.C. died from three gunshot wounds to the head. (Vol. VIITp. 1523) Two wounds were inflicted with .32-caliber bullets and one with a .38-caliber bullet. (Vol. VIIITp. 1938) T.L. died from one .38-caliber gunshot wound to the head. (Vol. VIITp. 1546; Vol. VIIITp. 1911) Burris admitted shootingR.C. andT.L. each once with his .38-caliber gun. (Vol. VIIITpp. 1973, 1978) Burris testified that Friday shot R.C. with his .32-caliber gun. (Vol VIIITp. 1976) Burris and Mr. Sanders both testified that Mr. Sanders did not shoot anyone, and that Friday never gave his .32-caliber gun to Mr. Sanders. (Vol. IXTpp. 2026, 2105, 2150; Vol. XTpp. 2460-61)
After the murders, Friday drove to a gas station and toldMr. Sanders to get some beer. Mr. Sanders bought three beers, got back in the car, and Friday drove to his girlfriend’s house. (Vol. XTpp. 2460-62)
Mr. Sanders stayed on Friday’sgirlfriend’s couch that night, but did not sleep because he was afraid that Friday and Burris would kill him. (Vol. XTpp. 2462-63) Friday and Burris left Mr. Sanders inMountHollythe next day. Friday told Mr. Sanders, “[Y]ou better not tell nobody. I hate to see your mom out here getting high, I hate to catch her somewhere.” (Vol. XTp. 2463)
Mr. Sanders did not report the crimes because he was afraid for his mother, sisters, brothers, and himself. (Vol. XTpp. 2463, 2466, 2474;Vol. XITp. 2496) Mr. Sanders testified that he “dodg[ed]” police because Friday’s threat still hung over his head. (Vol. XTpp. 2465-66)
While Mr. Sanders was incarcerated in July 2004, an inmate friendly with Fridaytold Mr. Sanders, “[Y]ou got my homeboy locked up down here, I ought to go up in your mouth.” The men fought. Another inmate told him, “[Y]ou better watch your back[.]” (Vol. XTp. 2474) A judge transferred Mr. Sanders for safekeeping. (Rpp. 32-33)
According to Dr. Jerry Noble, an expert psychologist, Mr. Sanders had a full scale IQ of 79 and borderline intellectual functioning. However, his IQ score might have been overestimated, and hecould have been mildly mentally retarded. (Vol. XTpp. 2305-06) Mr. Sanders’ sub-average intellectual functioning and dependent personality traits existed at the time of the offenses. (Vol. XTp. 2308; Defendant’s Exh. 6, p. 101) Mr. Sanders’ “mental age” was younger than his chronological age. In Nobles’ opinion, Mr. Sanders had the maturity level of a mid-teen in June 1993,and Mr. Sanders’psychological impairments made him “more susceptible to duress, coercion and threat of violence.” Nobles opined that, based upon Mr. Sanders’ account of 2 June 1993, he“participated in the robbery of the females under duress, coercion and threat of violence.” (Vol. XTp. 2310; Defendant’s Exh. 6 pp. 101-02)
According to Burris,who testified pursuant to a plea agreement to lesser charges, Mr. Sanders said he wanted to rob the two teenage girls. Burris testified that he let Mr. Sanders out of the back seat and Mr. Sanders pulled a gun on the girls. Burris testified thatMr. Sanders used the .38 that Burris had put underneath his seat. (Vol. VIIITpp. 1960; Vol. IXTpp. 2044-45)
Burris further testified that when the girlsdid not cooperate, Mr. Sanders panicked and forced them into the car while Burris held up the seat. Friday was angry that Burris had invited Mr. Sanders because Mr. Sanders did not “even know how to rob anybody[.]” (Vol. VIIITpp. 1961-62)
From her apartment window, Ieeshah Mackey saw a black man with a gun force two white girls into a car. (Vol. VIITpp. 1675-77) Mackey could not identify the black male at trial, (Vol. VIITp. 1718) but testified that he was eighteen or twenty years old, about six feet tall, and wearing blue jeans, a striped shirt, and a hat turned backwards. (Vol. VIIITp. 1717) Burris did not testify about his, Friday’s, or Mr. Sanders’ clothing. Mr. Sanders testified thatBurris wore blue jeans, a shirt, and a ball cap;Friday wore jeans and a tee-shirt; and he wore shorts and a tee-shirt. (Vol. XTp. 2433) Mackey was positive that after the black man forced the girls into the car, he got into the front passenger seat. (Vol. VIITp. 1721) According to both Mr. Sanders and Burris, Burris sat in the front passenger seat that night. (Vol. VIIITpp. 1952-53; Vol. XTp. 2427)
According to Burris, Mr. Sanders fondled the teens in the back seat as Friday drove away. (Vol. VIIITp. 1963) Burrisdid not take anything from the girls or seeMr. Sanders take anything from them. (Vol. VIIITp. 1972) Friday told Burris he was mad at Mr. Sanders, and that “we had to do what we got to do.” Burris “already knew at that point that [Friday] was so mad that he was going to kill the girls as well as possibly[Mr.] Sanders.” (Vol. VIIITpp. 1970-71)
Friday suggested they drive to MountHolly. Burris thought that if Friday killed Mr. Sanders, Friday might also kill him. Burris was afraid that Friday would go to a rural area in MountHollywith which he was unfamiliar. He insteaddirected Friday to an isolated warehouse. (Vol. VIIITpp. 1971-72; Vol. IXTpp. 2095, 2097)
Friday, who still had his .32, pulled the car next to the warehouse. According to Burris, Mr. Sanders still had Burris’ .38. (Vol. VIIITpp. 1972-73)
Burris and Friday got out first. Friday told Burris, “[Y]ou know what we got to do” and suggested having sex with the girls. Mr. Sanders and the teens got out of the car. (Vol. VIIITpp. 1973-74)
Burris testified that he raped T.L., Friday raped R.C.,and Mr. Sanders received oral sex from both teens at gunpoint. Friday told Burris to get the gun from Mr. Sanders while Mr. Sanders was receiving oral sex from T.L. Burris got the gun and walked back to Friday. (Vol. VIIITpp. 1974-76)
According to Burris, Friday then shot R.C. and told Burris to shoot her. Burriscomplied. (Vol. VIIITp. 1976) Burris further testified that Friday wanted to shoot Mr. Sanders and pointed his gun at Mr. Sanders. (Vol. IXTpp. 2109, 2154-55) Burris “really thought that [Friday] was going to shoot [Mr. Sanders] too...so I shot [T.L.] and told Sanders get in the car and let’s go.” (Vol. VIIITp. 1978)
According to Burris, they got back in the car and drove towards MountHolly. Friday said, “[D]on’t nobody say nothing about this[.]” Friday and Burris dropped Mr. Sanders off and went back to Friday’s mother’s house. (Vol. VIIITpp. 1978-79) Burris hid his gun because he needed it for protection from Friday. Burris was unsure whether Friday would do something to him. Burris knew Friday “was trying to do something to [Mr. Sanders] eventually over the years.” (Vol. VIIITpp. 1986-87, 1989-90)
Both Burris and Mr. Sanders gave pretrial statements to police. Burris first spoke to police on 30 March and 11 July 1994 and denied any responsibility for the crimes. (Vol. IXTpp. 2008-09) Burris was arrested for the murders of R.C. and T.L. on 17 October 2003. (Vol. IXTp. 2010) On 17 May 2004, Burris gave a tape-recorded and a handwritten statement to police, both containing “stuff made up about putting it all on [Mr. Sanders] because he was the reason we was locked up.” (Vol. IXTpp. 2017, 2021-22; Addendum to the Documentary Exh. pp. 1-47) Burris testified that these statements contained lies. (Vol. IXTpp. 2017, 2019, 2026) The 17 May 2004 statement also contained a reference to a polygraph Burris took in 1994 or 1995. (Addendum to the Documentary Exh. p. 46) A voir dire examination of Burris revealed that he failed that polygraph. (Vol. IXTp. 2058)