STATE OF NORTH CAROLINA
v. McDowell County
Nos. 02 CRS 3854
LARRY EUGENE BOWMAN, JR. 02 CRS 53620
Attorney General Roy Cooper, by Assistant Solicitor General
John F. Maddrey, for the State.
Nancy R. Gaines for defendant-appellant.
STEELMAN, Judge.
Defendant, Larry Eugene Bowman, Jr., was convicted of first-
degree rape and first-degree murder based on both malice,
premeditation and deliberation, and felony murder. The jury
recommended defendant be sentenced to life imprisonment without
parole for the first-degree murder conviction and the trial court
entered judgment in accordance with that recommendation. The trial
court also sentenced defendant to a consecutive term of 336 to 413
months imprisonment for first-degree rape. Defendant appeals.
The State's evidence at trial tended to show the following:
defendant was a friend of the victim's father and lived near the
victim and her father. On the morning of 1 November 2002, afterthe victim's father had left for work, defendant went to the
victim's residence to borrow a tool. The thirteen-year-old victim
did not know where the tool was, but suggested it may be with some
other tools that were in the kitchen. She allowed defendant to
enter the residence to look for the tool.
When defendant could not find the tool in the kitchen, the
victim walked him back to the door. Defendant then hit her across
the face, grabbed her arms, and shook her. Thereafter, defendant
had forcible intercourse with the victim, during which time she was
screaming and making pain noises. The victim cried and begged
defendant to stop, which caused defendant to become angry.
Defendant squeezed the victim's neck and hit her until she was
unable to speak and he resumed having forcible intercourse with her
until he ejaculated inside her vagina. Thereafter, defendant
squeezed the victim's neck for approximately five minutes until she
was totally silent.
Defendant began thinking about how much he wanted to have
intercourse again and he ran to the front door to insure nobody was
near the residence. He returned to the victim's bedroom and found
her motionless and quiet. Because of how hard it had been for
defendant to have intercourse with the victim, he searched for
something to lubricate her vagina. He found a bottle with green
liquid in it on the victim's makeup stand and squeezed the contents
of the bottle into her vagina so they could have sex more easily
the next time. After staring at her naked and motionless body,
however, defendant became scared about what would happen to him ifhe were caught. He believed the only way to avoid getting the
death penalty for raping a little girl was to kill her to keep her
silent. Defendant then used his pocketknife to cut the victim's
throat and pulled the knife back and forth across her throat.
Thereafter, defendant ran out of the house, got into his truck,
drove to Bojangles where he purchased two biscuits and a tea, and
drove to work.
Defendant first contends the trial court erred in denying his
pretrial motion to transfer venue. According to the motion,
stories about the crime at issue were in the local newspaper, The
McDowell News. Because of reports regarding the brutality of the
crime and the relatively small population in McDowell County,
defendant asserted many potential jurors had an acquaintance with
or knew of the victim or her family. As a result of the pretrial
publicity, defendant argued he could not receive a fair trial in
McDowell County.
The ruling on a motion to transfer venue is a matter firmly
within the trial court's discretion and will not be overturned on
appeal absent a manifest abuse of that discretion. State v.
Richardson, 308 N.C. 470, 477-78, 302 S.E.2d 799, 804 (1983). “A
defendant seeking a new trial on the basis of a trial court's
denial of a motion for change of venue or special venire must
ordinarily establish specific and identifiable prejudice against
him as a result of pretrial publicity.” State v. Billings, 348
N.C. 169, 177, 500 S.E.2d 423, 428 (1998) (emphasis added). In
order to meet this burden, defendant “ordinarily must show interalia that jurors with prior knowledge decided the case, that he
exhausted his peremptory challenges, and that a juror objectionable
to him sat on the jury.” Id. (emphasis in original).
In this case, defendant used only thirteen of his fourteen
peremptory challenges in selecting the twelve jurors who were
impaneled to hear his case and, thus, he did not exhaust his
peremptory challenges. Further, defendant does not argue that any
individual juror was objectionable to him that sat on the jury. As
such, defendant has not shown any specific identifiable prejudice
against him as a result of pretrial publicity that necessitated a
change of venue. Accord id.
Nevertheless, this Court must further examine this issue. Our
Supreme Court has indicated that “where the totality of the
circumstances reveals that an entire county's population is
'infected' with prejudice against a defendant, the defendant has
fulfilled his burden of showing that he could not receive a fair
trial in that county even though he has not shown specific
identifiable prejudice.” Id. (citing State v. Jerrett, 309 N.C.
239, 258, 307 S.E.2d 339, 349 (1983)(holding the trial court's
denial of defendant's motion for change of venue was improper)).
In the present case, defendant argues he has established the need
for a change of venue in the same manner as the defendant in
Jerrett. We disagree.
The facts in Jerrett are distinguishable from the facts in the
present case. In Jerrett, the defendant presented extensive
testimony from members of the media, a sheriff, a local magistrateand three attorneys that a fair trial could not be held in
Allegheny County. The Court found it “extremely significant” that
“the crime occurred in a small, rural and closely-knit county where
the entire county was, in effect, a neighborhood.” 309 N.C. at
256, 307 S.E.2d at 348. One-third of the prospective jurors knew
or were familiar with the victims or their family; four of the
jurors who served knew the victim's family or the victims'
relatives, six jurors who decided the case knew the State's
witnesses, and the foreman stated he had heard a victim's relative
discussing the case in an emotional manner. Id. at 257, 307 S.E.2d
at 348-49.
In this case, the trial court found McDowell County had a
population of “slightly more than 42,000 pursuant to the last
census in 2000.” McDowell County, thus, does not constitute the
small “neighborhood” type of environment at issue in Jerrett. The
trial court also found, inter alia, “[t]he main and primary means
of newspapers in McDowell County is the McDowell News that has a
circulation of slightly less than 15 percent of the population[.]”
While a number of prospective jurors had heard about the case prior
to trial, none of the seated jurors possessed any preconceived
notions about the guilt or innocence of defendant. Further, the
level of familiarity the jurors in Jerrett had with the victim, the
victim's family, and the State's witnesses is not present in this
case. In viewing the totality of the circumstances in this case,
we find there is not a reasonable likelihood that pretrial
publicity prevented defendant from receiving a fair trial inMcDowell County. This argument is without merit.
Next, defendant contends the trial court committed reversible
error by denying his motion to exclude or limit the admissibility
of seven crime scene photographs and five autopsy photographs on
the ground their probative value was outweighed by their
inflammatory nature. In determining whether to admit photographic
evidence, the trial court must “weigh the probative value of the
photographs against the danger of unfair prejudice to the
defendant.” State v. Goode, 350 N.C. 247, 258, 512 S.E.2d 414, 421
(1999) (citing N.C. Gen. Stat. § 8C-1, Rule 403). This ruling is
vested in the sound discretion of the trial court, and as a result,
will not be reversed absent a clear showing the decision was
manifestly unsupported by reason. Id.
Here, defendant argues the photographs of the naked and
violated body of the thirteen-year-old victim had little purpose
except to inflame the jury. Defendant further argues the only
thing these photographs accomplished was to keep the jury focused
on the horror of the crime, and as a result of seeing the
photographs, the jurors could not turn their minds to the lack of
intent or planning, or to defendant's state of mind. We find
defendant's arguments unpersuasive.
“'Photographs of a homicide victim may be introduced even if
they are gory, gruesome, horrible or revolting, so long as they are
used for illustrative purposes and so long as their excessive or
repetitious use is not aimed solely at arousing the passions of the
jury.'” Id. (citations omitted). In particular, photographs maybe used “to illustrate testimony regarding the manner of killing so
as to prove circumstantially the elements of murder in the first
degree.” State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523 526
(1988). Our Supreme Court has affirmed a trial court's admission
of autopsy photographs that corroborated the cause of death, Goode,
350 N.C. at 259, 512 S.E.2d at 421-22, and the admission of crime
scene photographs which showed the location and circumstances of
death, State v. Haselden, 357 N.C. 1, 14-15, 577 S.E.2d 594, 603
(2003). “Even where a body is in advanced stages of decomposition
and the cause of death and identity of the victim are
uncontroverted, photographs may be exhibited showing the condition
of the body and its location when found.” State v. Blakeney, 352
N.C. 287, 310, 531 S.E.2d 799, 816 (2000) (citations and internal
quotations omitted).
In this case, the record does not demonstrate the challenged
photographs showing the victim were used excessively and solely to
inflame the passions and prejudices of the jury. Our careful
review of the record reveals that each photograph at issue
illustrated, in some unique respect, the manner in which the victim
was killed and the testimony of three of the State's witnesses. In
particular, the seven crime scene photographs showing the victim's
body illustrated the various injuries to the victim's body and the
location and position of the victim's body at the crime scene.
Four of the seven challenged crime scene photographs illustrated
the testimony of the first law enforcement officer responding to
the crime scene and the remaining three crime scene photographsillustrated the testimony of a special agent with the State Bureau
of Investigation who investigated the crime scene.
The five autopsy photographs at issue illustrated the
testimony of the forensic pathologist who performed the autopsy on
the victim's body. During his direct examination, the five autopsy
photographs were tendered to him, one at a time, and he explained
each of the victim's injuries depicted in the photographs and their
significance to the victim's cause of death. We conclude defendant
has not shown the trial court abused its discretion by admitting
the challenged photographs into evidence. This argument is without
merit.
NO ERROR.
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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