State v. Golphin8/25/2000
licted a fatal wound to Deputy Hathcock. Subsequently, when Kevin and Tilmon fled the scene, Tilmon was carrying Deputy Hathcock's weapon.
Kevin points to other possible scenarios based on the evidence presented. However, we do not require the evidence to rule out every possible hypothesis of innocence. See Thomas, 350 N.C. at 343, 514 S.E.2d at 503. Considering the evidence in the light most favorable to the State, see Nobles, 350 N.C. at 504, 515 S.E.2d at 898, there is substantial evidence from which the jury could find that the first-degree murder and robbery with a dangerous weapon of Deputy Hathcock were committed pursuant to Kevin's common purpose with Tilmon of possessing a stolen vehicle.
CAPITAL SENTENCING PROCEEDING
By assignment of error, Tilmon argues the trial court erred by denying his motion to sever his and Kevin's sentencing proceedings. Tilmon contends the trial court's actions constituted prejudicial error. By a similar assignment of error, Kevin argues the trial court committed reversible constitutional error by joining his and Tilmon's cases for sentencing. We disagree.
Initially, we note Kevin concedes he did not object to joinder for sentencing or renew a previous motion to sever; therefore, he did not preserve appellate review of this issue pursuant to N.C. R. App. P. 10(b)(1). Kevin argues, however, the trial court's error amounts to plain error pursuant to N.C. R. App. P. 10(c)(4). However, plain error review is limited to errors in a trial court's jury instructions or a trial court's rulings on admissibility of evidence. See State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). This Court has previously declined to extend plain error review to other issues, and we decline to do so now. See State v. Fleming, 350 N.C. 109, 133, 512 S.E.2d 720, 737 (declined to extend plain error review to the situation where the trial court allowed and instructed the prosecutor to prompt his witness after the witness had taken the stand), cert. denied, ___ U.S. ___, 145 L. Ed. 2d 274 (1999); Atkins, 349 N.C. at 81, 505 S.E.2d at 109-10 (declined to extend plain error review to situations in which the trial court failed to give an instruction during jury voir dire which was not requested). Therefore, we will not review Kevin's assignment of error.
Tilmon, on the other hand, relied on a letter from his mother, Sylvia Williams, to show why the cases should be severed for sentencing. The letter stated that Williams would not testify for Tilmon because of possible damage to Kevin's case. However, Tilmon never actually renewed his prior motion to sever, nor did he object to joinder of the cases for sentencing. Therefore, the trial court never ruled on this issue. Tilmon's purported efforts, during the sentencing phase, to revive his previous motion to sever were insufficient to satisfy N.C. R. App. P. 10 to preserve appellate review of this issue. Pursuant to N.C. R. App. P. 2, however, we waive the appellate rules and review Tilmon's assignment of error. Any error found by this Court will also apply to Kevin, as his case was joined with Tilmon's. See Oliver, 309 N.C. at 361, 307 S.E.2d at 327.
Joint defendants convicted of capital crimes at a joint trial can be joined for sentencing if each defendant receives individualized sentencing consideration. See id. at 366, 307 S.E.2d at 328-29. In Oliver, this Court stated that the United States Supreme Court impliedly approved joint sentencing proceedings as long as there is "individualized consideration given to each defendant's culpability." Id. at 366, 307 S.E.2d at 330 (citing Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d
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