IN THE SUPREME COURT OF NORTH CAROLINA
No. 241A97
FILED: 5 MAY 2000
STATE OF NORTH CAROLINA
v.
HENRY LOUIS WALLACE
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
judgments imposing nine sentences of death entered by Johnston,
J., on 29 January 1997 in Superior Court, Mecklenburg County,
upon jury verdicts finding defendant guilty of nine counts of
first-degree murder. Defendant's motion to bypass the Court of
Appeals as to his appeal of additional judgments was allowed by
the Supreme Court on 9 March 1999. Heard in the Supreme Court
16 November 1999.
Michael F. Easley, Attorney General, by Ellen B. Scouten,
Special Deputy Attorney General, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender, by Benjamin
Dowling-Sendor, Assistant Appellate Defender, for defendant-
appellant.
WAINWRIGHT, Justice.
On 4 April 1994, defendant Henry Louis Wallace was indicted
for the murders of (1) Caroline Love, (2) Shawna Hawk, (3) Audrey
Ann Spain, (4) Valencia M. Jumper, (5) Michelle Stinson,
(6) Vanessa Little Mack, (7) Betty Jean Baucom, (8) Brandi June
Henderson, and (9) Deborah Slaughter. In addition, defendant was
indicted for the following crimes: (1) first-degree rape of
Love, (2) second-degree rape of Hawk, (3) two counts of second-
degree sexual offense against Hawk (fellatio and cunnilingus),
(4) first-degree rape of Spain, (5) robbery with a dangerousweapon of Spain, (6) first-degree rape of Jumper, (7) first-
degree sexual offense against Jumper, (8) first-degree rape of
Stinson, (9) first-degree sexual offense against Stinson,
(10) first-degree rape of Mack, (11) robbery with a dangerous
weapon of Mack, (12) first-degree rape of Baucom, (13) robbery
with a dangerous weapon of Baucom, (14) first-degree rape of
Henderson, (15) robbery with a dangerous weapon of Henderson,
(16) assault with a deadly weapon inflicting serious injury
against T.W., Henderson's ten-month-old son, (17) assault on a
child under twelve years of age against T.W., (18) first-degree
rape of Slaughter, and (19) robbery with a dangerous weapon of
Slaughter.
Between September 1996 and January 1997, defendant was tried
capitally before a jury. On 7 January 1997, the jury found
defendant guilty of nine counts of first-degree murder, each on
the basis of malice, premeditation, and deliberation, and under
the felony murder rule. In addition, the jury found defendant
guilty of eight counts of first-degree rape, one count of second-
degree rape, two counts of first-degree sexual offense, two
counts of second-degree sexual offense, one count of assault with
a deadly weapon, one count of assault on a child under the age of
twelve, and five counts of robbery with a dangerous weapon.
After a capital sentencing proceeding, the jury recommended
a sentence of death for each of the nine counts of first-degree
murder. On 29 January 1997, the trial court entered judgment in
accordance with the recommendations and sentenced defendant to
nine death sentences. In addition, the trial court sentenced
defendant to eight consecutive life sentences for the first-
degree rape convictions, a consecutive forty-year sentence forthe second-degree rape conviction, two consecutive life sentences
for the first-degree sexual offense convictions, two consecutive
forty-year sentences for the second-degree sexual offense
convictions, five consecutive forty-year sentences for the
robbery with a dangerous weapon convictions, and a consecutive
two-year sentence for the assault on a child under the age of
twelve conviction. The trial court arrested judgment on the
assault with a deadly weapon conviction. Defendant appeals to
this Court as of right from the sentences of death. Defendant's
motion to bypass the Court of Appeals on the other convictions
was allowed by this Court on 9 March 1999.
The State presented evidence tending to show that defendant
murdered nine women in the Charlotte area over a two-year period.
Defendant was identified as a suspect in three of the later
murders by a palm print found on the car of one of the victims.
As will be detailed below, defendant was arrested on an
outstanding larceny charge and interrogated by police. He
confessed to the murders of Caroline Love, Shawna Hawk, Audrey
Spain, Valencia Jumper, Michelle Stinson, Vanessa Mack, Betty
Baucom, Brandi Henderson, and Deborah Slaughter. The State
presented the following evidence:
Caroline Love Murder
On 15 June 1992, Caroline Love was living in an apartment
with Sadie McKnight, defendant's girlfriend. That night, after
completing her shift at the Bojangles' restaurant on Central
Avenue in Charlotte, Love asked the night manager if she could
buy a roll of quarters to do her laundry. The night manager
exchanged a roll of quarters for a ten-dollar bill, and Love left
the premises. As Love walked toward her apartment, her cousin,Robert Ross, saw her walking, offered her a ride, and drove her
home. Ross watched as Love entered her apartment.
A few days later, Love's employer contacted Love's sister,
Kathy Love (Kathy), and informed her that Love had not come to
work in two days. Kathy went to Love's apartment and left a
note. However, the next day, Kathy was again informed Love had
not come to work. Kathy then contacted defendant, whom she knew,
to find Love's roommate, McKnight. Kathy, McKnight, and
defendant went to the police station to file a missing person
report. Later, Kathy went into Love's apartment. She noticed
that some of the furniture had been moved and that the sheets
from Love's bed were missing, but there was no evidence of Love's
whereabouts. During the investigation of the missing person
report, Investigator Tony Rice of the Charlotte-Mecklenburg
Police Department determined that the roll of quarters Love
bought prior to leaving work on 15 June 1992 was missing from her
apartment. Love was not found as a result of the missing person
report.
On 13 March 1994, defendant confessed to the murder of
Caroline Love. At trial, the State introduced redacted versions
of defendant's tape-recorded confession. In the confession,
defendant stated he made a copy of McKnight's house key and went
to the apartment when neither McKnight nor Love was there.
Defendant heard Love enter the apartment. He indicated to Love
that he was in the bathroom and would leave as soon as he came
out. Upon coming out of the bathroom, however, defendant went
into the living room where Love was watching television and
kissed her on the cheek. Love promised not to tell McKnight
about the kiss if defendant promised not to do it again. Defendant then put his arms around Love in a manner similar to a
wrestling choke hold. Defendant confessed that there was a
scuffle, that Love scratched him on his arms and face, and that
he kept holding Love until she passed out. Defendant then moved
Love to her bedroom, removed her clothes, tied her hands behind
her back with the cord of a curling iron, and placed tape over
her mouth. Defendant had oral sex and sexual intercourse with
Love, during which she was semiconscious. While engaged in
intercourse with Love, defendant continued to apply the choke
hold because Love began to regain consciousness. Defendant
applied the choke hold until Love's body became limp. Defendant
stated he could tell she was still alive because he could feel
her heart and pulse. Afterwards, defendant strangled Love to
death.
Defendant further confessed that he left the apartment to
move his car closer to the stairwell and then returned to the
apartment with a large orange trash bag. Defendant wrapped
Love's body in a bed sheet and put the body inside the trash bag.
Defendant placed some clothing into another bag to make it appear
Love had left. Defendant carried the bags down the stairs,
placed them in the backseat of his car, and then drove around
Charlotte trying to find a place to dump Love's body. Defendant
stopped the car while driving down Statesville Road, removed the
trash bag containing Love's body from his car, and dumped the bag
into the woods. The following day, defendant drove back to the
location because he feared the orange bag would be noticeable
from the road. Defendant stated that he removed the body from
the orange trash bag and then moved the body into a shallowravine. Defendant also admitted taking a roll of quarters from
Love's dresser.
Later on 13 March 1994, after defendant's confession,
defendant directed Rice and other investigators to the site where
he had dumped Love's body. Subsequently, Dr. James Michael
Sullivan, a forensic pathologist and medical examiner employed by
the Medical Examiner's Office of Mecklenburg County, went to the
area of Statesville Road to recover Love's skeletal remains.
Dr. Sullivan performed an autopsy on those remains. Based on the
history provided by the police, the absence of any significant
findings to contradict a history of strangulation, and the
location of the unclothed remains in a wooded area, Dr. Sullivan
determined that the cause of death was homicide by means of
strangulation.
Shawna Hawk Murder
In February 1993, Shawna Hawk was living with her mother,
Sylvia Denise Sumpter, in Charlotte. Hawk was a paralegal
student at Central Piedmont Community College and worked at a
Taco Bell restaurant on Sharon Amity Road, where defendant was
her manager. On 19 February 1993, Sumpter arrived home and began
to cook dinner. Hawk's car was not there, but Sumpter saw Hawk's
coat and purse in a closet. This seemed unusual because it was
very cold outside, Hawk never went anywhere without her purse,
and Sumpter had seen Hawk earlier in the day wearing the coat.
Sumpter called Hawk's boyfriend, Darryl Kirkpatrick, to ask if he
had seen Hawk, but Kirkpatrick said he had not.
Sumpter then learned that Hawk was to have picked up her
godson from daycare but had not done so. Sumpter looked through
Hawk's purse and noticed that her keys were not there and thatsome money was missing. Kirkpatrick arrived at the home to
comfort Sumpter. Kirkpatrick and Sumpter decided to file a
missing person report and called the police. Subsequently,
Kirkpatrick walked through the house looking in each room. He
entered a bathroom downstairs and noticed the shower curtain
outside the bathtub. When Kirkpatrick pulled the shower curtain
back, he saw Hawk curled up and submerged in water. Kirkpatrick
ran upstairs and told Sumpter to call 911. Emergency personnel
arrived, tried to resuscitate Hawk, and then transported her to
the hospital, where she was pronounced dead.
On 20 February 1993, Dr. Sullivan performed an autopsy on
Hawk's body. He discovered a contusion on the left side of
Hawk's scalp above the ear and a laceration of the left eardrum
with some hemorrhaging behind the eardrum evidencing a blunt
trauma prior to death. Dr. Sullivan indicated that based on the
bruising present, the blow occurred prior to death but that it
was unlikely that the blow caused unconsciousness. Dr. Sullivan
also observed hemorrhages in the lining of the eyes
(conjunctiva), on the skin of the face, in the lining of the
mouth, and in the muscles in the front of the neck overlying the
voice-box area, all of which were an indication of ligature
strangulation. Dr. Sullivan defined a ligature as an
instrument, a cord or a band or something that's made into a cord
or a band, then circles the neck and is used to forcibly compress
the neck. Based on his observations, Dr. Sullivan opined that
the cause of Hawk's death was ligature strangulation.
Defendant confessed that he stopped by Hawk's home to see
her and that they talked for a while. As defendant was leaving,
Hawk gave him a hug. Defendant then told Hawk he wanted her tohave sex with him. Defendant took Hawk to her bedroom, told her
to remove her clothing, and told her to perform oral sex on him,
which she did. Then, defendant performed oral sex on Hawk. The
two then engaged in sexual intercourse. Defendant admitted that
Hawk was afraid and cried the whole time. Afterwards, defendant
told Hawk to put her clothes on, and he took her into the
bathroom. Defendant placed Hawk in a choke hold, with her head
between his arms, until she passed out. Defendant then filled
the bathtub with water and placed Hawk in it. Defendant also
admitted taking fifty dollars from Hawk.
Audrey Spain Murder
In June 1993, Audrey Spain, age twenty-four, lived in an
apartment in Charlotte. On 23 June 1993, Spain was to report to
work at 6:30 p.m. at a Taco Bell restaurant on Wendover Road.
Spain did not show up for work. Mark Lawrence, Spain's manager,
thought it was unusual for Spain not to come to work, so he drove
by Spain's apartment that evening. Lawrence saw Spain's car in
the parking lot. Lawrence then called Spain and left a message
on her answering machine.
The next morning, 24 June 1993, Lawrence rode by Spain's
apartment and again saw her car in the lot. Lawrence called
Spain's sister and left a message to express his concern. Spain
did not show up for work that evening. Spain's sister never
returned Lawrence's call, so Lawrence called 911. Thereafter,
officers periodically rode by the apartment and knocked on the
door, but got no response.
On 25 June 1993, maintenance personnel from the apartment
complex entered the apartment through a sliding glass door and
discovered Spain's body on the bed. Lawrence again stopped bySpain's apartment, and an officer informed Lawrence they had
discovered Spain dead in her apartment.
On 26 June 1993, Dr. Sullivan conducted an autopsy on
Spain's body. There was a ligature made from a T-shirt and a bra
around Spain's neck with the end of the T-shirt stuffed into her
mouth. After removing the ligature, Dr. Sullivan discovered a
furrow, or mark, left by the ligature. Dr. Sullivan also
observed hemorrhages in the conjunctiva, on the skin of the face,
in the voice box, and in the muscles in the front of the neck, as
well as minor blunt-trauma injuries, including a small facial
abrasion, small linear abrasions on her right back and on the
knee, and a small contusion over the right hip. Dr. Sullivan
opined that the cause of death was strangulation.
Defendant confessed that he went to Spain's house and that
they smoked marijuana together. Defendant admitted that his
motive for visiting Spain was robbery. He stated that he put
Spain in a choke hold in her living room and inquired about the
combination for the safe at her workplace, but she said she did
not know the combination. Defendant also asked about money in
her personal bank account, but she said she did not have any
money because she had just returned from a vacation. Defendant
said he did not remember asking Spain to remove her clothes.
Spain begged defendant not to hurt her, but defendant maintained
the choke hold until Spain passed out. Defendant then dragged
Spain into her bedroom and had intercourse with her. Afterwards,
defendant took Spain into the bathroom, where he put her into the
shower to wash off any evidence. Defendant placed Spain into her
bed and tied a T-shirt and bra around her neck. Before leaving,
defendant took Spain's keys and Visa credit card. He used theVisa card to purchase gas. Defendant returned to Spain's
apartment to make phone calls so it would seem as though she had
not died on the day defendant killed her.
Valencia Jumper Murder
In August 1993, Valencia Jumper was a senior at Johnson C.
Smith University in Charlotte, studying political science. She
also worked at Food Lion on Central Avenue and at Hecht's in
South Park Mall. On 9 August 1993, a friend of Jumper's, Zachery
Douglas, spoke with Jumper on the phone about meeting later that
night. Subsequently, Douglas arrived at Jumper's apartment in
the early morning hours of 10 August 1993 and noticed smoke
coming from her apartment. Douglas testified that he turned the
door knob, and the door was unlocked, so he opened the door.
Douglas stated that there was too much smoke for him to enter the
apartment any further. Douglas then alerted a neighbor, who
called the fire department.
As firefighters arrived on the scene to fight the fire,
firefighter Dennis Arney entered the kitchen and noticed that a
burner on the stove had been left on. Based on examinations at
the fire scene, the information provided by firefighters, and the
observed pattern the fire traveled, the investigators believed
the fire originated from a pot left burning on the stove.
Firefighters found Jumper's body in the bedroom of her apartment.
On 10 August 1993, Dr. Sullivan performed an autopsy on
Jumper's body. Jumper's body was extensively charred.
Dr. Sullivan was told that the fire was thought to have been
accidentally caused by a pot of beans left burning on the stove.
However, he found no soot in Jumper's airway, indicating there
was no significant inhalation of smoke during the fire. Afterlearning there was no carbon monoxide in Jumper's blood,
Dr. Sullivan listed thermal burns as the cause of death. After
defendant's confession, Dr. Sullivan reexamined the Jumper
autopsy and amended the cause of Jumper's death. Dr. Sullivan
testified that the cause of Jumper's death was strangulation.
Defendant confessed to Jumper's murder. He indicated that
Jumper was like a little sister to him and that they often spent
time with one another. On the night in question, defendant
stated that he stopped by Jumper's apartment and that they talked
for a while and then defendant left. Defendant later returned to
Jumper's apartment and asked her to call McKnight because they
had gotten into a fight. When Jumper reached toward the phone,
defendant put her in a choke hold. Defendant told Jumper to go
to the bedroom. Jumper begged defendant not to hurt her and
stated she would do anything he wanted. Jumper removed her
clothes. Defendant and Jumper engaged in oral sex and sexual
intercourse. Afterwards, while Jumper was putting her clothes
back on, defendant put a towel around her neck and choked her
until she passed out. Defendant stated that Jumper started
bleeding from the nose, so he kept the pressure on the towel for
about five minutes until he felt no pulse. Then defendant wiped
his fingerprints from certain areas of the apartment. Defendant
went into the kitchen and noticed a bottle of rum, so he took the
bottle to the bedroom and poured the rum on Jumper's body, on the
bed, and on the floor nearby. Defendant then went back into the
kitchen, opened a can of beans, put the beans in a pot on the
stove, and turned the stove on high. Defendant took the battery
out of the smoke detector. Defendant went back into the bedroom,
lit a match, and threw it on Jumper's rum-soaked body beforeleaving the apartment. Defendant returned to the apartment
twenty minutes later. When he saw smoke rushing out the door, he
left and went home. Defendant admitted taking jewelry from
Jumper's body and pawning it in a local pawn shop.
Michelle Stinson Murder
In September 1993, Michelle Stinson, age twenty, lived in an
apartment in Charlotte, with her two young sons. On 15 September
1993, Stinson's friend, James Mayes, stopped by her apartment to
visit with Stinson and her children. Mayes knocked on the front
door, but no one answered. Mayes heard the children knocking on
the window and telling him their mother was sleeping on the
kitchen floor. Mayes thought they were playing a game, but
Stinson did not answer. Mayes had turned to leave when the
oldest child came out the back door and grabbed him. Mayes
picked up the child and went back into the apartment through the
back door. Mayes discovered Stinson lying on the kitchen floor
with blood around her. Mayes picked up the phone but realized
the cord had been cut or jerked out of the wall. Mayes took the
children and asked neighbors to help him find a phone. He then
called the police.
Dr. Sullivan performed an autopsy on Stinson's body on
16 September 1993. He discovered four stab wounds to the left
side of the back. Two of the four stab wounds caused injury to
the heart and lungs and were potentially fatal. Dr. Sullivan
also observed evidence of ligature strangulation in the form of a
band of abrasions and contusions over the front of the neck and
small hemorrhages in the skin of the face, the conjunctiva, and
internally in the muscles of Stinson's neck. Dr. Sullivanopined that the cause of Stinson's death was stab wounds to the
chest with strangulation as a contributing cause.
Defendant confessed that he stopped by Stinson's apartment
around 11:00 p.m., with the intention of raping and murdering
her. They talked for a while, and then defendant got ready to
leave and they hugged. At that point, defendant told Stinson
that he wanted to have sex with her and that he wanted her to
remove her clothes. Stinson told defendant she was sick, but
defendant did not believe her and wanted her to produce some sort
of medication, which she could not do. Defendant began to choke
Stinson. Stinson then agreed to have sex with defendant and
removed her clothes. Defendant told Stinson he wanted her to
perform oral sex on him, but she stated she did not know how.
Defendant responded, well you're about to learn. Stinson then
performed oral sex on defendant. After having sexual intercourse
on the kitchen floor, defendant administered a choke hold until
Stinson became unconscious. Defendant strangled Stinson with a
towel he had retrieved from the bathroom. Stinson began to gasp
for air, so defendant took a knife and stabbed her approximately
four times. Defendant used a washcloth to wipe his fingerprints
from a glass, the door, the phone, the wall, and the floor.
Before defendant left the apartment, Stinson's oldest son awoke,
and defendant told him to go back to bed. Defendant left through
the back door, using a towel to avoid leaving fingerprints, and
threw the knife and washcloth over a fence near the back of
Stinson's apartment.
Vanessa Mack Murder
In February 1994, Vanessa Mack was living in an apartment in
Charlotte with her two young daughters. She worked at Carolinas
Medical Center. On 20 February 1994, Barbara Rippy, the
grandmother of Mack's oldest daughter, went to Mack's apartment
to pick up Mack's youngest daughter, as she did every Sunday
morning so Mack could go to work. Rippy arrived at 6:00 a.m. and
went to the back door, but the door was ajar. Rippy called out,
but Mack did not respond. As she entered, Rippy noticed Mack's
four-month-old daughter lying on the couch, which she felt was
unusual. Rippy entered the bedroom and saw Mack's feet hanging
off the side of the bed. Rippy testified that Mack's feet were
the only part of her body exposed and that they appeared gray and
felt cold. Rippy called 911. Rippy then picked up Mack's
daughter and went outside. As she left the apartment, fire
department and police department vehicles arrived.
Officer Jeffrey Bumgarner of the Charlotte-Mecklenburg
Police Department found Mack lying on her bed. Bumgarner
observed a towel around Mack's neck and blood coming from her
nose, ears, and the back of her head. Bumgarner also noticed a
pocketbook, with its contents scattered on the bed.
Dr. Sullivan performed an autopsy on Mack's body on
21 February 1994. He observed minimal evidence of blunt trauma
as well as evidence of strangulation. There was a ligature in
place around Mack's neck. The ligature was made of a long-sleeve
pull-over type shirt and a towel. Dr. Sullivan also observed
small hemorrhages in the conjunctiva, on the skin of the face,
and in the muscles in the front of the neck. He also observed
small areas of bruising beneath the ligature likely caused by thepinching of the ligature. Dr. Sullivan opined that the cause of
Mack's death was strangulation.
Defendant confessed that he had been in Mack's neighborhood
and had called to see if she was at home. When she answered, he
hung up the phone. He then walked over to her apartment.
Defendant admitted that his motives for going to see Mack were
robbery, to support his cocaine addiction, and murder. Defendant
stated that he tried to find a way to maneuver Mack into the
position he needed in order to administer a choke hold, but she
refused to give defendant a hug, so he asked for something to
drink. When Mack turned her back, defendant pulled out a
pillowcase he had brought with him and placed it around her neck.
As Mack resisted, defendant put more pressure on the pillowcase
and explained that this was a robbery. Defendant and Mack went
into the bedroom, where defendant commanded Mack to give him all
the money she had, including her automated teller machine (ATM)
card and personal identification number (PIN). After Mack gave
defendant everything, he told her to remove her clothes, which
she did. Defendant and Mack engaged in sexual intercourse.
Afterwards, defendant told Mack to put her clothes back on.
Defendant then tightened the pillowcase around Mack's neck until
she passed out. Defendant added another garment to keep the
pillowcase from loosening. Defendant then checked on Mack's baby
and stayed until the baby went to sleep. Defendant left the
apartment, walked down the street, and called a cab. Later,
defendant attempted to use the ATM card at several banks and
discovered that the PIN given to him by Mack was not correct.
Betty Baucom Murder
In March 1994, Betty Baucom lived in an apartment in
Charlotte with her adopted daughter. On 9 March 1994, Baucom, an
assistant manager at the Bojangles' restaurant on Central Avenue,
was scheduled to work, but she did not report to work. Baucom's
unit director, Jeffrey Ellis, called Baucom's apartment several
times but received no answer. Ellis also talked with some of
Baucom's co-workers, but no one had heard from her.
Additionally, Ellis called Baucom's mother, but she had not heard
from Baucom.
The next morning, Ellis became increasingly worried because
Baucom was again scheduled to work but did not report. Neither
Baucom's mother nor Baucom's aunt had heard from Baucom. Ellis
and another employee drove to Baucom's apartment to check on her.
They knocked on the door and looked in the windows, and
everything appeared normal. Ellis then called Baucom's mother
again. Ellis and Baucom's mother decided to contact the police
department, and they reported Baucom as a missing person.
Officer Gregory Norwood of the Charlotte-Mecklenburg Police
Department received a call on the morning of 10 March 1994 to
respond to an apartment where a young woman had been found. She
was not breathing. Maintenance personnel let Norwood into the
apartment. Norwood discovered Baucom's body lying facedown on
her bed with a towel around her neck. Approximately an hour
after Ellis called police, an officer approached Ellis in the
parking lot of the Bojangles' restaurant and told him they had
found Baucom's body.
Dr. Sullivan performed an autopsy on Baucom's body on
11 March 1994. He observed blunt-trauma injuries and evidence ofstrangulation, including a ligature in place around her neck.
The ligature consisted of a small sheet or pillowcase in a knot
with an additional towel wrapped between the skin of the neck and
the sheet. Dr. Sullivan observed small abrasions and small
contusions of the skin of the neck beneath the ligature and small
hemorrhages in the conjunctiva. Additionally, Dr. Sullivan
observed abrasions over the left shoulder, both arms, the right
upper chest, and the abdomen, and a blunt-trauma injury to the
head with an area of abrasion over the right forehead. During
the internal examination, Dr. Sullivan observed a buildup of
blood in the lungs, enlargement of the brain, small hemorrhages
in the muscles in the front of the neck, and small hemorrhages in
the lining of the voice box. He testified that the injuries
observed were consistent with a struggle. Dr. Sullivan opined
that the cause of Baucom's death was strangulation.
Defendant confessed that he went to Baucom's apartment and
told her he needed to use the phone. Baucom let defendant into
her apartment. They talked for a while. As defendant was
getting ready to leave, he placed a choke hold on Baucom, and she
fell to the floor. Defendant told her this was a robbery and
demanded the alarm code, keys, and combination to the safe for
the Bojangles' restaurant where Baucom was the manager. Baucom
was very upset, and she took approximately thirty minutes to
produce the safe's combination. Defendant then released the
choke hold. Defendant remembered Baucom asking, Why did you do
that to me? Defendant responded that he was a sick person and
that he had hurt many people. Baucom then embraced defendant,
said that she forgave him, and told him he needed help.
Defendant stated he then became enraged and grabbed Baucom by thethroat, slammed her to the floor, and then scuffled with her.
Defendant got Baucom to her feet and took her into the bedroom,
where he told her to remove her clothes. Baucom told defendant
she did not want to remove her clothes because she had a medical
problem. She then showed defendant a rash, which defendant
stated looked like an ordinary rash. Defendant then told Baucom
he wanted her to perform oral sex on him. She grabbed his penis
and started pulling and scratching. Defendant and Baucom began
to scuffle again, and defendant sustained a bite on his shoulder
and scratches on his abdomen. Defendant was able to tighten the
towel around Baucom's neck until she was nearly unconscious. At
this point, Baucom removed her clothes and engaged in sexual
intercourse with defendant. Afterwards, defendant told Baucom to
put her clothes back on. He then placed a towel around her neck
and asked her if she had any money. Baucom gave defendant the
money in her purse, and he took a gold chain from around her
neck.
After strangling Baucom to death, defendant took her
television and left in her car. Defendant sold the television
for drugs. He then returned to Baucom's apartment to make sure
Baucom was dead and to take her VCR. While in Baucom's
apartment, defendant used a wet cloth to wipe off the phone, door
knobs, and the wall on which some of the struggle took place.
Defendant used money from Baucom's purse, the gold chain, and the
VCR to purchase more drugs. Defendant kept Baucom's car almost
two days. Defendant then left the car in a parking lot, because
he thought police officers were following him. Defendant stated
that he wiped the interior and most of the exterior of the car,
but forgot to wipe the trunk lid.
Brandi Henderson Murder
In March 1994, Brandi Henderson was living in an apartment
with her boyfriend, Verness Lamar Woods, and their ten-month-old
son, T.W. On 9 March 1994, Woods was at the apartment taking
care of T.W. because Henderson had a doctor's appointment. As
Henderson was leaving, defendant went to the apartment to say he
was leaving town. Defendant stayed for only a few minutes and
then left. Henderson returned during the afternoon. Around five
o'clock in the evening, Woods left to go to work. When Woods
left, Henderson and T.W. were alone in the apartment, the
apartment was neat and clean, and the front door was locked.
Woods returned to the apartment around midnight to find the front
door unlocked, items scattered about the living room, and the
stereo missing. Woods then went through the apartment. He first
came to T.W.'s bedroom where he turned on the light and saw T.W.
sitting on the bed gasping for air with something white coming
out of his mouth and a pair of shorts around his neck. Woods
immediately ran to T.W. to remove the shorts, which were tied
tightly around T.W.'s neck. Woods then realized that Henderson
was lying facedown on the bed. Woods rolled her onto her back
and saw that towels were tied around her neck and that her face
was blue. Woods removed the two towels from Henderson's neck and
then called 911. He moved Henderson's body from the bed to the
floor and began administering CPR pursuant to instructions from
the 911 operator. When police officers arrived, it was obvious
Henderson was dead. T.W. was taken to the hospital.
Upon being taken to Carolinas Medical Center, Dr. Tom Brewer
examined T.W. in the emergency room. Dr. Brewer testified that
T.W. was awake, breathing, and had stable vital signs. However,his failure to pull away when stuck with a needle was some
evidence that he was not acting normally. There were red marks
around T.W.'s neck consistent with something being tied around
his neck. In addition, there was very fine bruising on T.W.'s
cheeks and eyelids caused by a buildup of blood pressure as a
result of his jugular vein being blocked. Moreover, T.W.'s
altered mental status indicated his brain was not functioning
normally because of some compromise of blood flow to the brain.
Within fifteen to thirty minutes, T.W. became more alert and
began interacting with his environment. Dr. Brewer testified
that he believed the ligature and T.W.'s injuries caused great
pain and suffering.
Dr. Sullivan performed an autopsy on Henderson's body on
10 March 1994. Dr. Sullivan observed minor blunt-trauma injuries
and lacerations. He also observed evidence of strangulation
including small hemorrhages in the eyes, over the skin of the
face and neck, in the muscles in the front of the neck, and in
the lining of the voice box. Dr. Sullivan opined that the cause
of death was strangulation.
Defendant confessed that he planned to murder Henderson on
Tuesday morning, but when he arrived at the apartment, Woods was
present. Defendant left the apartment, found Baucom's apartment
in the same apartment complex, and murdered Baucom. He returned
to Henderson's apartment the same night when he knew Woods would
be at work. Defendant pretended he had something to leave for
Woods. Henderson and defendant talked for a while, and then
defendant asked for something to drink. When Henderson reached
into the cabinet, defendant choked her and told her to go into
the bedroom. Henderson begged defendant to allow her to hold herson, but he said, I don't know if that would be a good idea for
what we're about to do. Defendant told her this was also going
to be a robbery and demanded money. Henderson gave defendant a
Pringle's can filled with approximately twenty dollars worth of
coins and said there was no other money in the house. Defendant
also told Henderson he would be taking the television and stereo
when he left. Defendant then told Henderson to remove her
clothes, which she did. Henderson grabbed her son, laid him
across her chest, and turned his head away so he could not see
what was going on. Defendant and Henderson started to have
sexual intercourse in Henderson's bedroom but moved to T.W.'s
bedroom so he would not cry. Once in T.W.'s room, defendant and
Henderson continued to have sexual intercourse, with T.W. lying
across Henderson's chest. Afterwards, defendant told Henderson
to put her clothes back on, and he put his clothes on. Defendant
went into the bathroom, got a towel, and wiped off everything.
Thereafter, defendant folded the towel, put it around Henderson's
neck, and strangled her to death. Henderson's body fell to the
floor. Defendant picked up Henderson's body and put it onto
T.W.'s bed. He also tied the towel in a knot around her neck.
T.W. started crying, so defendant gave him a pacifier. Defendant
looked for something T.W. could drink but could not find
anything. Defendant then took another towel from the bathroom
and tied the towel tight around T.W.'s neck so it would be
difficult for him to breathe and so he would stop crying. T.W.
stopped crying and laid down next to his mother's body.
Defendant then ran into the living room, disconnected the stereo,
and loaded it into Baucom's car. Defendant also took a
television that was sitting on the floor. Before leaving,defendant took some food that had been delivered and the
container of coins. Defendant sold the television and stereo for
$175.00 which he used to purchase crack cocaine.
Deborah Slaughter Murder
In March 1994, Debra Slaughter lived alone in an apartment
in Charlotte. On 12 March 1994, Slaughter's mother, Lovey
Slaughter (Lovey), went to Slaughter's apartment to return a
picture she had taken a few days before. Lovey had a key to the
apartment and anticipated letting herself in because Slaughter
was supposed to be at work. When Lovey arrived, she knocked on
the door and got no response. She put the key into the lock and
discovered the door was not locked. As Lovey walked through the
door, she saw Slaughter's body lying on the floor. Lovey called
911.
Officer Ronnie Chambers of the Charlotte-Mecklenburg Police
Department entered Slaughter's apartment and found a purse with
its contents scattered on the floor. Chambers then noticed
Slaughter's body lying on the floor faceup. There was white
fabric in Slaughter's mouth and a towel around her neck.
Chambers also observed several puncture wounds in Slaughter's
chest.
On 14 March 1994, Dr. Sullivan performed an autopsy on
Slaughter's body. During the external examination, he observed a
ligature around Slaughter's neck and a sock balled up and stuffed
into her mouth, holding her mouth open. The evidence of
strangulation included the ligature around Slaughter's neck and
hemorrhages in the conjunctiva. The ligature was comprised of
two towels, the inner towel encircled around the neck, and the
outer towel tied tightly in a single knot. Dr. Sullivan alsoobserved blunt-trauma injuries, including abrasions of the skin
of the face and a single scalp contusion. Additionally,
Dr. Sullivan observed sharp-trauma injuries caused by thirty-
eight stab wounds to the chest and abdomen. Three of the stab
wounds caused injury to the heart, and twelve of the stab wounds
caused injury to the left lung; each of these stab wounds could
have been fatal. Stab wounds also caused injury to the liver and
stomach. Dr. Sullivan opined that Slaughter's death was caused
by multiple stab wounds, with strangulation as a contributing
factor in the death.
Defendant confessed that he went to Slaughter's apartment to
use drugs with her. Defendant realized that Slaughter had some
money when she said she could not buy any drugs because she had
to make her money last until the next week. Defendant asked
Slaughter to get him something to drink. As Slaughter turned
around, defendant put a towel he brought with him around
Slaughter's neck and tightened it. Slaughter fell to her knees.
Defendant stated that Slaughter then realized that defendant was
the one who had killed two other girls in nearby apartments.
Defendant told Slaughter to remove her clothes and to perform
oral sex on him. Defendant remembered Slaughter saying, I don't
do that; you might as well go ahead and kill me. Defendant
tightened the towel and asked if she wanted to change her mind.
Slaughter stated that she would not perform oral sex on
defendant. Defendant engaged in sexual intercourse with
Slaughter. Afterwards, defendant told Slaughter to put her
clothes on. Defendant, knowing Slaughter carried a knife in her
purse at all times, asked Slaughter to empty the contents of her
purse onto the floor, which she did. Defendant kicked the knifeaway and then told Slaughter to open the wallet and give him
everything in it. As Slaughter did this, defendant grabbed the
knife. Slaughter handed defendant forty dollars from the wallet.
Slaughter hit defendant and screamed for the police. Defendant
then tightened the towel around Slaughter's neck until she fell
to the floor and started kicking. Defendant tightened the towel
more and tried to sit on top of Slaughter's legs to keep
Slaughter from alerting the neighbor downstairs. Defendant went
to the bathroom to retrieve another towel, which he tied with the
first around Slaughter's neck. Defendant stabbed Slaughter with
the knife from her purse approximately twenty times in the
abdomen. Defendant then washed the knife clean and wiped his
fingerprints from it and placed it back with the contents of
Slaughter's purse on the floor.
Defendant left Slaughter's apartment to purchase crack
cocaine. He returned to Slaughter's apartment to smoke the crack
cocaine. When he left the second time, defendant took a coat, a
baseball hat, and a butcher knife from Slaughter's apartment.
Defendant threw all three items away after leaving the apartment.
The State also introduced evidence regarding the
investigation which led to defendant's arrest. Following the
Henderson murder on 9 March 1994, which was discovered prior to
the Baucom murder, investigators noticed similarities between the
Henderson murder and the Mack murder. Both victims were black
females, there was no forced entry in either case, and there was
a ligature used in both cases.
On 10 March 1994, investigators held a meeting to discuss
similar cases involving strangulation. During this meeting,
investigators learned that another victim, Baucom, had beendiscovered in the same apartment complex as Henderson. The
Baucom murder exhibited characteristics similar to the Mack and
Henderson cases. Defendant became a suspect in these crimes when
investigators asked victims' family members and friends for the
names of persons the victims might have allowed into their
apartments. Defendant's name was on the list.
On 11 March 1994, after Baucom's vehicle was recovered,
police compared a palm print lifted from Baucom's vehicle to
defendant's prints and found a match. Investigators then began
an extensive search for defendant based on an outstanding warrant
for his arrest on a larceny charge.
On 12 March 1994, during the search for defendant,
investigators learned that Slaughter had been discovered in her
apartment. The Slaughter case exhibited characteristics similar
to the Mack, Henderson, and Baucom cases.
Between 5:30 and 6:00 p.m. on 12 March 1994, defendant was
arrested on the outstanding order for arrest. During
questioning, after defendant had been advised of his
Miranda
rights, investigators told defendant of the evidence connecting
defendant to the crimes, including photos of defendant attempting
to use Mack's ATM card at teller machines and the matching palm
print from Baucom's car. Defendant confessed to the murders of
Love, Hawk, Spain, Jumper, Stinson, Mack, Baucom, Henderson, and
Slaughter. Defendant did not testify at trial but presented
evidence from three expert witnesses. Further facts necessary to
the discussion of the issues raised by defendant will be
presented as needed.
PRETRIAL ISSUES
By an assignment of error contained in an amendment to the
record allowed by this Court on 19 August 1999, defendant
contends the short-form indictments used to charge him with nine
counts of first-degree murder are constitutionally inadequate.
In addition, in a motion for appropriate relief filed on 28
October 1999, defendant challenges the constitutionality of the
short-form indictments charging him with eight counts of first-
degree rape and two counts of first-degree sexual offense.
Initially, we address whether these issues are properly
before this Court. Defendant did not contest the murder
indictments at trial but argues that a jurisdictional issue can
be raised at any time. Defendant contends that the
constitutionally inadequate indictments deprived the trial court
of jurisdiction to hear the cases. He makes the same
jurisdiction argument with regard to the rape and sexual offense
indictments contested in his motion for appropriate relief.
It is well settled that a constitutional question which is
not raised and passed upon in the trial court will not ordinarily
be considered on appeal.
State v. Hunter, 305 N.C. 106, 112,
286 S.E.2d 535, 539 (1982). An attack on an indictment is waived
when its validity is not challenged in the trial court.
See
State v. Robinson, 327 N.C. 346, 361, 395 S.E.2d 402, 411 (1990).
However, where an indictment is alleged to be invalid on its
face, thereby depriving the trial court of its jurisdiction, a
challenge to that indictment may be made at any time, even if it
was not contested in the trial court.
See,
e.g.,
State v.
McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982);
State v. Sellers,
273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968). As to theindictments challenged in defendant's motion for appropriate
relief, this Court has held that a motion for appropriate relief
filed while an appeal is pending properly raises the issue of an
indictment's conferral of jurisdiction to a trial court.
See
State v. Sturdivant, 304 N.C. 293, 307-08, 283 S.E.2d 719, 729
(1981). Although a motion for appropriate relief generally does
not allow a defendant to raise an issue that could have been
raised on direct appeal,
see N.C.G.S. § 15A-1419(a)(3) (1999), a
challenge to the trial court's jurisdiction may be raised by a
motion for appropriate relief. Therefore, these issues are
properly before this Court.
Defendant argues the short-form indictments violate his
right to due process under the Fifth and Fourteenth Amendments to
the United States Constitution and his rights to notice and trial
by jury under the Sixth Amendment. Defendant contends the United
States Supreme Court's recent ruling in
Jones v. United States,
526 U.S. 227, 143 L. Ed. 2d 311 (1999), requires a finding that
the short-form indictments are unconstitutional because they fail
to allege all of the elements of the crimes charged.
Specifically, he argues they fail to allege those elements which
differentiate first-degree murder, rape, and sexual offense from
second-degree murder, rape, and sexual offense. We disagree.
Each of the nine indictments against defendant for murder
utilized the same language:
THE JURORS FOR THE STATE UPON THEIR OATH PRESENT
that on or about the [date] day of [month], [year], in
Mecklenburg County, Henry Louis Wallace did unlawfully,
wilfully, and feloniously and of malice aforethought
kill and murder [victim's name].
Only the names of the victims and the dates of the murders
differed from one indictment to the next. Each of theseindictments complied with N.C.G.S. § 15-144, which provides for a
short-form version of an indictment for murder:
In indictments for murder and manslaughter, it is
not necessary to allege matter not required to be
proved on the trial; but in the body of the indictment,
after naming the person accused, and the county of his
residence, the date of the offense, the averment with
force and arms, and the county of the alleged
commission of the offense, as is now usual, it is
sufficient in describing the murder to allege that the
accused person feloniously, willfully, and of his
malice aforethought, did kill and murder (naming the
person killed), and concluding as is now required by
law; . . . and any bill of indictment containing the
averments and allegations herein named shall be good
and sufficient in law as an indictment for murder or
manslaughter, as the case may be.
N.C.G.S. § 15-144 (1999). This Court has consistently held
indictments based on this statute are in compliance with both the
North Carolina and United States Constitutions.
See,
e.g.,
State
v. Kilpatrick, 343 N.C. 466, 472, 471 S.E.2d 624, 628 (1996);
State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786, 792-93 (1985);
State v. Williams, 304 N.C. 394, 422, 284 S.E.2d 437, 454 (1981),
cert. denied, 456 U.S. 932, 72 L. Ed. 2d 450 (1982).
Similarly, the eight indictments against defendant for
first-degree rape contained identical language with the
exceptions of the dates and victims' names:
THE JURORS FOR THE STATE UPON THEIR OATH PRESENT
that on or about the [date] day of [month], [year], in
Mecklenburg County, Henry Louis Wallace did unlawfully,
wilfully and feloniously with force and arms engage in
vaginal intercourse with [victim's name], by force and
against the victim's will.
The two indictments for first-degree sexual offense also used the
same language, substituting the phrase a sexual act for
vaginal intercourse. Each of these indictments complied with
the statutes authorizing short-form indictments for rape and
sexual offense.
See N.C.G.S. §§ 15-144.1, -144.2 (1999). Indictments under these statutes have been held to comport with
the requirements of the North Carolina and United States
Constitutions.
See,
e.g.,
State v. Randolph, 312 N.C. 198, 210,
321 S.E.2d 864, 872 (1984);
State v. Lowe, 295 N.C. 596, 604, 247
S.E.2d 878, 883-84 (1978).
Defendant's argument is based on
Jones, 526 U.S. 227, 143 L.
Ed. 2d 311. In
Jones, the United States Supreme Court was called
upon to interpret the federal carjacking statute, 18 U.S.C. §
2119, as it was written at the time of the offense. The statute
provided:
Whoever, possessing a firearm as defined in
section 921 of this title, takes a motor vehicle that
has been transported, shipped, or received in
interstate or foreign commerce from the person or
presence of another by force and violence or by
intimidation, or attempts to do so, shall --
(1) be fined under this title or imprisoned not
more than 15 years, or both,
(2) if serious bodily injury (as defined in
section 1365 of this title) results, be fined
under this title or imprisoned not more than 25
years, or both, and
(3) if death results, be fined under this title
or imprisoned for any number of years up to life,
or both.
18 U.S.C. § 2119 (Supp. V 1993). The question presented to the
Court was whether the statute provided for one offense with three
maximum penalties or three separate offenses. The majority
recognized the susceptibility of the statute to both readings but
reasoned that a finding of three separate offenses would avoid a
significant constitutional problem. In subsections (2) and (3),
the statute provides for greater punishment if either serious
bodily injury or death results from the carjacking.
See id. The
Court determined that the findings in subsections (2) and (3)
which allowed for greater punishments amounted to additional
elements of the respective offenses subject to the requirementsof the Fifth and Sixth Amendments. The Court restated the
principle:
[U]nder the Due Process Clause of the Fifth Amendment
and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.
Jones, 526 U.S. at 243 n.6, 143 L. Ed. 2d at 326 n.6. To avoid
the possibility that a greater punishment might be imposed
without the predicate fact or element being charged in the
indictment or submitted to a jury for proof beyond a reasonable
doubt, the Court held three separate offenses existed and one
specific offense must be charged from the outset.
Id. at 252,
143 L. Ed. 2d at 331.
In the instant case, defendant cites to the principle stated
in footnote six above as a restatement of constitutional law
which requires any indictment, whether it be for a state or
federal offense, to charge all facts which might increase the
maximum penalty for the crime. Defendant contends that this
pronouncement reaffirms a line of United States Supreme Court
cases defining due process. He further argues that this Court's
prior rulings confirming the constitutionality of short-form
indictments were in error.
We first examine the cases which defendant claims require
all of the facts or elements to be alleged in the indictment. In
Hodgson v. Vermont, 168 U.S. 262, 42 L. Ed. 461 (1897), the
United States Supreme Court reviewed the information upon which
the defendant was tried and convicted for violations of Vermont's
liquor laws. Stating the due process requirements for charging a
defendant, the Court noted: that in all criminal prosecutions the accused must be
informed of the nature and cause of the accusation
against him; that in no case can there be, in criminal
proceedings, due process of law where the accused is
not thus informed, and that the information which he is
to receive is that which will acquaint him with the
essential particulars of the offence, so that he may
appear in court prepared to meet every feature of the
accusation against him.
Id. at 269, 42 L. Ed. at 463. While the Court held a defendant
must be made aware of the nature and cause of the charge
against him and the essential particulars of the offence, the
holding does not require every element of an offense or every
fact which might increase the maximum punishment to be charged in
an indictment.
Defendant also cites
Mullaney v. Wilbur, 421 U.S. 684, 44 L.
Ed. 2d 508 (1975), and
Patterson v. New York, 432 U.S. 197, 53 L.
Ed. 2d 281 (1977), which address the due process requirements of
the United States Constitution in prosecutions for state
offenses. In each of these cases, the due process issue was
whether certain facts or elements had to be proven to a jury
beyond a reasonable doubt. Due process as applied to the states
via the Fourteenth Amendment protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.
In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375 (1970).
In
Jones, the Court engaged in a discussion of
Mullaney and
Patterson. Defendant contends this discussion infers an intent
by the Court to extend the due process requirement of the Fifth
Amendment as detailed in
Jones to the Fourteenth Amendment as
discussed in
Mullaney and
Patterson. We discern no such intent.
The holdings in
Mullaney and
Patterson make no mention of the
requirements of an indictment and only apply the proof beyond areasonable doubt standard to all elements of a crime. Likewise,
in
McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67 (1986),
the Court, in determining the proper standard by which a
sentence-enhancement finding must be made, addressed the
applicability of the reasonable doubt standard. There was no
discussion of the requirements of an indictment.
Defendant also cites
United States v. Gaudin, 515 U.S. 506,
132 L. Ed. 2d 444 (1995), and
Hamling v. United States, 418 U.S.
87, 41 L. Ed. 2d 590 (1974), as further evidence that the
requirement that all elements be listed in an indictment is well
established. However, these cases along with
Jones involve
application of Fifth Amendment due process which applies to the
federal government and federal prosecutions, not to the state
prosecution of a state offense, as in this case.
See also
Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d
350 (1998);
Hodgson, 168 U.S. 262, 42 L. Ed. 461.
Defendant has not cited, and we have not discovered, any
United States Supreme Court case which has applied the Due
Process Clause of the Fourteenth Amendment in a manner which
requires that a state indictment for a state offense must contain
each element and fact which might increase the maximum punishment
for the crime charged. Furthermore, it is informative to note
the United States Supreme Court has specifically declined to
apply the Fifth Amendment requirement of indictment by grand jury
to the states via the Fourteenth Amendment.
See Hurtado v.
California, 110 U.S. 516, 28 L. Ed. 232 (1884). The Court's
refusal to incorporate the grand jury indictment requirement into
the Fourteenth Amendment along with the lack of precedent on this
issue convinces us that the Fourteenth Amendment does not requirethe listing in an indictment of all the elements or facts which
might increase the maximum punishment for a crime. Indeed, the
Supreme Court specifically stated that its decision in
Jones
announce[d] [no] new principle of constitutional law, but merely
interpret[ed] a particular federal statute in light of a set of
constitutional concerns that have emerged through a series of our
decisions over the past quarter century.
Jones, 526 U.S. at
251-52 n.11, 143 L. Ed. 2d at 331 n.11. In light of our
overwhelming case law approving the use of short-form indictments
and the lack of a federal mandate to change that determination,
we decline to do so. Defendant's arguments in objection to his
indictments for first-degree murder, first-degree rape, and
first-degree sexual offense are without merit and are overruled.
By an assignment of error, defendant next contends the trial
court erred by failing to grant his motions for change of venue.
Defendant filed a motion to change venue on 9 August 1994. The
trial court conducted an extensive and lengthy evidentiary
hearing on defendant's motion from 23 January through 27 January
1995, at which time defendant presented evidence of pretrial
publicity, including numerous television and newspaper reports
and two press conferences held by Charlotte-Mecklenburg Police
Department officials. Defendant also presented evidence of a
telephone survey conducted by Dr. Robert Bohm, a criminal justice
professor at the University of North Carolina at Charlotte, which
measured public opinion regarding the cases.
At the hearing, defendant argued that the pretrial publicity
was prejudicial and inflammatory and that the attitude of the
community, as exemplified by the comments of public officials,
the media, and responses to polling, was such that he could notreceive a fair trial in this venue. The trial court orally
denied defendant's motion, making the following findings of fact:
The passage of time and the publicity or lack
thereof after the pole [sic] was taken, could
amelierate [sic] or exacerbate the responses to the
questions about which the Defendant expressed concerns.
Mecklenburg County is a large urban county with a
population of approximately five hundred thousand, and
a voting aged population probably in excess of three
hundred fifty thousand.
To quote defense counsel, quote, it is a large
diverse county with many intelligent people, period,
end quote.
With regard to the pretrial publicity, the trial court found some
of the coverage to be inflammatory and misleading but found the
remaining coverage either favorable to defendant or factual,
informative, and not inflammatory or prejudicial. The trial
court concluded that defendant has not established . . . a
reasonable likelihood that pretrial publicity would prevent him
from receiving a fair and impartial trial in Mecklenburg County.
On 30 September 1996, defendant renewed his motion and
presented evidence of a second telephone survey conducted by
Dr. Katherine Jamieson, an associate professor of criminal
justice at the University of North Carolina at Charlotte.
Defendant also presented evidence detailing additional newspaper
and television reports regarding defendant and the crimes with
which he was charged. The trial court denied defendant's renewed
motion to change venue. Defendant introduced evidence to
supplement his motion to change venue on at least three
additional occasions before and during the trial. The trial
court denied each renewed motion to change venue.
On appeal, defendant contends the trial court erred in
denying his motions to change venue because (1) the trial court'sreasons for its initial denial of his motion were improper and
amounted to an abuse of discretion; (2) there was identifiable
prejudice caused by the trial court's rulings in that a juror who
expressed an opinion regarding defendant's guilt or innocence
served on the jury over defendant's objection; and (3) the pool
of potential jurors was infected by pretrial publicity, making it
reasonably unlikely that defendant could receive a fair trial in
Mecklenburg County. We disagree.
We begin our review of defendant's assignment of error by
restating the applicable law. N.C.G.S. § 15A-957, which governs
motions for change of venue, provides:
If, upon motion of the defendant, the court
determines that there exists in the county in which the
prosecution is pending so great a prejudice against the
defendant that he cannot obtain a fair and impartial
trial, the court must either:
(1) Transfer the proceeding to another county in
the prosecutorial district as defined in G.S.
7A-60 or to another county in an adjoining
prosecutorial district as defined in G.S.
7A-60, or
(2) Order a special venire under the terms of
G.S. 15A-958.
N.C.G.S. § 15A-957 (1999). The test for determining whether a
motion for change of venue should be allowed is well settled.
A defendant's motion for a change of venue should be
granted when he establishes that it is reasonably
likely that prospective jurors would base their
decision in the case upon pretrial information rather
than the evidence presented at trial and would be
unable to remove from their minds any preconceived
impressions they might have formed.
State v. Jerrett, 309 N.C. 239, 254-55, 307 S.E.2d 339, 347
(1983). The burden of proof in a hearing on a motion for change
of venue rests with the defendant.
See State v. Madric, 328 N.C.
223, 226, 400 S.E.2d 31, 33 (1991). To meet that burden, a
defendant must establish specific and identifiable prejudiceagainst [defendant] as a result of pretrial publicity and must
show
inter alia that jurors with prior knowledge decided the
case, that [defendant] exhausted his peremptory challenges, and
that a juror objectionable to [defendant] sat on the jury.
State v. Billings, 348 N.C. 169, 177, 500 S.E.2d 423, 428
(emphasis omitted),
cert. denied, 525 U.S. 1005, 142 L. Ed. 2d
431 (1998). The determination of whether a defendant has carried
his burden is within the sound discretion of the trial court, and
absent a showing of abuse of discretion, its ruling will not be
overturned on appeal.
See Madric, 328 N.C. at 226-27, 400 S.E.2d
at 33-34;
State v. Gardner, 311 N.C. 489, 497, 319 S.E.2d 591,
598 (1984),
cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985).
Defendant first argues the trial court's reasons for denying
his initial motion were erroneous. The trial court made
references to the passage of time and the size and diversity of
Mecklenburg County in its findings of fact, but did not describe
these factors as the reasons for its decision. Noting the
possible effects of time on an atmosphere of pervasive media
coverage is not erroneous where defendant's motion was first
considered in January 1995, more than eighteen months before his
trial began. The trial court's recognition of the probable time
frame for the trial as well as the size of the prospective jury
pool was reasonable. Such factors can be expected to influence
possible prejudice toward defendant. Although the evidence of
pretrial publicity, most of which was favorable to defendant or
factually neutral, was substantial at the time of defendant's
motion, we cannot say the trial court abused its discretion in
recognizing facts which, ultimately, may have impacted whether
the environment for defendant's trial was prejudicial. Furthermore, the trial court did not err in stating its
belief that the best evidence of whether pretrial publicity was
prejudicial or inflammatory was jurors' responses to
voir dire
questioning. This Court has repeatedly emphasized that '[t]he
best and most reliable evidence as to whether existing community
prejudice will prevent a fair trial can be drawn from prospective
jurors' responses to questions during the jury selection
process.'
State v. Jaynes, 342 N.C. 249, 264, 464 S.E.2d 448,
458 (1995) (quoting
Madric, 328 N.C. at 228, 400 S.E.2d at 34),
cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Our
recognition in
Jaynes of prospective juror responses as the most
reliable evidence of potential juror prejudice does not preclude
a pretrial change of venue in every case as argued by defendant
in his brief. Nor is it a standard to be applied only by the
appellate courts. Trial courts in this State have ordered venue
changes in numerous cases where prejudice to the defendant has
been apparent prior to trial. While juror responses may provide
the most reliable evidence, other forms of evidence can provide a
sufficient basis for a determination that a fair and impartial
trial is reasonably unlikely. Defendant's first argument is
without merit.
Defendant, in his second argument, contends identifiable
prejudice was established when a juror with a previous opinion of
defendant's guilt sat on the jury. However, our review of the
record indicates juror Thomas Bishop, who had formed an opinion
about defendant's guilt, later clearly stated his ability to set
aside that opinion and base his decision on the evidence and the
law as presented. We presume that prospective jurors tell the
truth in answering such questions because our courts could notfunction without the ability to rely on such presumptions.
See
State v. Barnes, 345 N.C. 184, 207, 481 S.E.2d 44, 56 (1997),
cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998).
Therefore, we presume juror Bishop was truthful in declaring his
ability to consider only the evidence at trial. We have no
evidence to suggest otherwise. Because the trial court could
reasonably conclude defendant had not adequately proven actual
prejudice based on the responses of the juror, it did not err in
denying defendant's motion to change venue.
See Jaynes, 342 N.C.
at 265, 464 S.E.2d at 458.
Defendant's third argument relating to the infection of the
jury pool by pervasive pretrial publicity is also meritless.
Defendant cites
Jerrett, 309 N.C. 239, 307 S.E.2d 339, as support
for his argument. In
Jerrett, this Court recognized that a
defendant has met his burden to show prejudice where the totality
of circumstances indicates pretrial publicity has so infected a
jurisdiction that a defendant cannot receive a fair trial.
Id.
at 258, 307 S.E.2d at 349. The crimes in
Jerrett occurred in
Alleghany County, a small rural community with a population of
9,587 at the time of the trial.
Id. at 252 n.1, 307 S.E.2d at
346 n.1. Examination of prospective jurors in
Jerrett revealed
that one-third of the jurors knew the victim or members of the
victim's family and that many of the jurors knew possible
witnesses for the prosecution.
Id. at 257, 307 S.E.2d at 348-49.
The instant case is distinguishable from
Jerrett. The
population of Mecklenburg County at the time of defendant's
arrest was approximately 511,433,
see North Carolina Manual
1993-1994, at 879 (Lisa A. Marcus ed.), and reflected a large
heterogeneous group of potential jurors in contrast to the smallclose-knit venire in
Jerrett. Juror familiarity with the victims
and their families is not present in this case as it was in
Jerrett. While it is clear that a large number of potential
jurors was exposed to information about the case through the
media, this Court has consistently held that factual news
accounts of the crimes and pretrial proceedings are not
sufficient to establish prejudice against a defendant.
See State
v. Dobbins, 306 N.C. 342, 345, 293 S.E.2d 162, 164 (1982).
Notwithstanding this case's dissimilarity to
Jerrett, the
evidence presented was insufficient to show infection of the jury
pool so as to deprive defendant of a fair trial. In addition to
media coverage, defendant points to the two telephone surveys as
further evidence of a biased jury pool. The surveys indicated
that media coverage of the crimes was widespread and that a large
number of persons was aware of the crimes and defendant's
identity. However, the surveys did not measure the prejudicial
effect of the media coverage, including potential jurors'
attitudes toward the presumption of innocence or their ability to
confine their determinations as jurors to the evidence presented
in court.
See State v. Richardson, 308 N.C. 470, 480, 302 S.E.2d
799, 805 (1983) (a similar survey did not provide evidence of the
prejudicial effect of publicity where it had not addressed the
presumption of innocence or whether jurors could confine their
decisions to the evidence presented in court). Although the
surveys asked questions relating to the death penalty and
defendant's guilt, answers to these questions outside the context
of the presumption of innocence and the juror's duty to consider
only the evidence presented at trial are not reliable evidence of
bias or prejudice. Viewing the totality of the circumstances,including the amount of media coverage, the number of potential
jurors available in Mecklenburg County, and the passage of time
between defendant's arrest and his trial, we conclude there was
not a reasonable likelihood that defendant could not receive a
fair and impartial trial in Mecklenburg County. Defendant's
assignment of error is overruled.
By an assignment of error, defendant next contends the trial
court erred by denying his motion to suppress his pretrial
statements to police. On 7 November 1994, defendant filed a
motion to suppress statements he made to police during a series
of interviews which began on the afternoon of 12 March and
continued through 13 March 1994. The trial court conducted an
evidentiary hearing on that motion at the 27 March 1995 session
of Superior Court, Mecklenburg County. On 20 April 1995, the
trial court denied the motion and on 3 October 1996, filed a
written order to that effect which contained extensive findings
of fact and conclusions of law.
In his brief, defendant agrees with the trial court's
findings of fact describing the events following his arrest. The
extensive findings of fact are summarized as follows: Defendant
was arrested 12 March 1994 at approximately 5:00 p.m. at a
friend's apartment. Officers Gilbert Allred and Sidney Wright of
the Charlotte-Mecklenburg Police Department placed defendant
under arrest pursuant to an outstanding order for arrest on a
misdemeanor larceny charge. The officers transported defendant
to the Law Enforcement Center (LEC) rather than the Intake Center
where prisoners were normally taken. Both arresting officers
testified that they observed no indications that defendant was
under the influence of alcohol or drugs. He was very calm andcollected but appeared tired and a little wrinkled. Defendant
was cooperative with the officers and did not object to being
taken to see investigators at the LEC rather than the Intake
Center. At the LEC, defendant was placed in an interview room
and released to the custody of other officers.
The trial court found that Investigators Mark Corwin and
Darrell Price met with defendant in an interview room at the LEC
beginning at 6:43 p.m. that same day. The officers provided
defendant with food and drink and allowed him regular breaks to
use the restroom. There was no evidence defendant was deprived
of food, drink, or the opportunity to use the restroom at any
time during the entire interview process. During the initial
interview, investigators and defendant talked about sports, his
employment and military experience, and his biographical
information. Defendant also voluntarily raised the issue of his
drug use. He gave inconsistent answers about the last time he
had used crack cocaine, indicating on one occasion that he had
last used drugs the week before and on another occasion that he
had used drugs that morning. However, there were no indications
defendant was under the influence of any impairing substance or
had been deprived of sleep at any time during the interviews. At
10:00 p.m., the investigators advised defendant of his
Miranda
rights which defendant said he understood and agreed to waive.
Prior to administering the
Miranda rights, the officers did not
ask defendant about his drug use or the victims for whose murders
he was a suspect. Officers asked no questions designed to elicit
an incriminating response. However, defendant was under arrest
and not free to leave pursuant to the larceny charge. The trial court further found that after defendant was
advised of his
Miranda rights, Price and Corwin questioned
defendant about the latest murders. Investigators C.E. Boothe,
Jr., and William Ward, Jr., also questioned defendant during the
evening of 12 March and the early morning of 13 March 1994.
Investigator Tony Rice met with defendant at 5:07 a.m. on
13 March 1994. Defendant greeted Rice and was happy to see him
because they knew each other. Questioning continued after Rice
entered the room, and defendant became emotional when he was
asked about his girlfriend, Sadie McKnight. Rice asked defendant
if he was religious and whether he would mind if Rice said a
prayer. Defendant said he did not mind. He cried during the
prayer. After the prayer, defendant sighed and then wrote a list
of the names of the victims he had killed. He later gave a
detailed, recorded confession concerning each of the victims.
Defendant was fed while he gave his confession and was allowed to
sleep from 7:30 a.m. until 11:45 a.m.
The trial court also found that at some point during the
interviews, defendant requested to see his girlfriend and to hold
his daughter. Ward advised defendant that the police would
attempt to contact McKnight and Wanda Harrison, the mother of
defendant's daughter. He also advised defendant that the police
had no control over whether either would come to the station.
The trial court further found that the officers did not view this
request as a condition for defendant making a statement.
The trial court also found that there was no evidence
defendant was coerced or intimidated in any way, nor was there
evidence defendant indicated he wished to stop talking with
officers or wanted to speak with an attorney. Magistrate KarenJohnson came to the LEC around noon and conducted a first
appearance for defendant on murder warrants obtained by
investigators. The trial court further found that Magistrate
Johnson followed normal procedures and that her ability to be
neutral and detached was not affected by going to the LEC.
The trial court found that after his appearance before
Magistrate Johnson, defendant continued cooperating with police,
providing individual confessions to each murder and taking police
to recover articles of evidence. At no time did defendant
request an attorney or indicate a desire to stop talking with
police.
Defendant contends his pretrial statements to police should
have been suppressed for three reasons: (1) police investigators
violated N.C.G.S. § 15A-501; (2) investigators' deliberate delay
in advising defendant of his
Miranda rights violated defendant's
right against self-incrimination; and (3) defendant's confessions
were involuntary because police investigators induced him to
waive his rights by agreeing to allow defendant to see his
girlfriend and hold his daughter. We disagree.
Defendant first contends police investigators violated
N.C.G.S. § 15A-501 by waiting nineteen hours to take defendant
before a magistrate after his arrest, taking him to the LEC for
questioning prior to his appearance before a magistrate, and
waiting three and a half hours after questioning began before
advising defendant of his rights pursuant to
Miranda v. Arizona,
384 U.S. 436, 16 L. Ed. 2d 694 (1966). Specifically, defendant
argues investigators engaged in a deliberate strategy to obtain
his confession by depriving him of his statutory and
constitutional rights and the strategy amounted to a substantialviolation of N.C.G.S. § 15A-501, which requires suppression of
all the confessions given by defendant.
Several duties of police officers after they have arrested a
suspect are described in N.C.G.S. § 15A-501:
Upon the arrest of a person, with or without a
warrant, but not necessarily in the order hereinafter
listed, a law-enforcement officer:
(1) Must inform the person arrested of the charge
against him or the cause for his arrest.
(2) Must, with respect to any person arrested
without a warrant and, for purpose of setting
bail, with respect to any person arrested
upon a warrant or order for arrest, take the
person arrested before a judicial official
without unnecessary delay.
(3) May, prior to taking the person before a
judicial official, take the person arrested
to some other place if the person so
requests.
(4) May, prior to taking the person before a
judicial official, take the person arrested
to some other place if such action is
reasonably necessary for the purpose of
having that person identified.
(5) Must without unnecessary delay advise the
person arrested of his right to communicate
with counsel and friends and must allow him
reasonable time and reasonable opportunity to
do so.
N.C.G.S. § 15A-501 (1999). Evidence obtained as a result of a
substantial violation of any provision in chapter 15A must be
suppressed.
See N.C.G.S. § 15A-974(2) (1999). The trial court,
in determining whether a violation is substantial, must consider
all of the circumstances, including the importance of the
interest violated, the extent of the deviation, the willfulness
of the deviation, and the deterrent value the exclusion of the
evidence will provide.
See id.;
State v. Simpson, 320 N.C. 313,
357 S.E.2d 332 (1987),
cert. denied, 485 U.S. 963, 99 L. Ed. 2d
430 (1988). In order for mandatory suppression to apply, a
causal relationship must exist between the violation and theacquisition of the evidence sought to be suppressed.
State v.
Richardson, 295 N.C. 309, 322, 245 S.E.2d 754, 763 (1978).
Initially, we address the delay in taking defendant before a
judicial official pursuant to N.C.G.S. § 15A-501(2). Defendant
was arrested at approximately 5:00 p.m. on 12 March 1994 on the
outstanding warrant for larceny. At the time of his arrest,
defendant was a suspect in three murders which possessed similar
characteristics. Each of these murders involved the
strangulation of a female victim, and all had occurred within the
previous month. With defendant already under arrest for larceny,
investigators attempted to establish a rapport with defendant to
facilitate their investigation of the murders. Defendant was
cooperative and spoke with investigators about a number of
unrelated topics. He also mentioned knowing two of the victims.
During this period, defendant was fed and given opportunities to
use the restroom. After open communication was established,
investigators advised defendant of his
Miranda rights and began
questioning him about the murders and his relationships with the
victims. At first, defendant acknowledged knowing several
victims but did not admit his involvement in their deaths. He
was unable to explain the number of people he knew who had died
of unnatural causes. When Rice joined the interrogation,
defendant listed the persons he had killed. Investigators were
not aware that many of the murders to which defendant confessed
were related. As investigators questioned defendant about each
victim specifically, defendant confessed to the numerous rapes,
sexual offenses, and robberies which accompanied the murders.
Defendant continued to cooperate with investigators by providing
explicit, sordid, and case-determinative details. Defendant gavecomplete tape-recorded confessions for each victim. After he
completed the recordings, defendant asked to take a nap.
Investigators brought a couch into the room where defendant was
being questioned, and defendant slept there from approximately
7:30 a.m. until 11:45 a.m. Investigators woke defendant so that
he could appear before a magistrate. Defendant was taken before
Magistrate Johnson at approximately noon on 13 March 1994.
The dispositive issue here is whether defendant's confession
resulted from the delay. This Court, on previous occasions, has
held a confession obtained as a result of interrogation prior to
an appearance before a magistrate was not obtained as a result of
a substantial violation of chapter 15A.
See,
e.g.,
State v.
Littlejohn, 340 N.C. 750, 459 S.E.2d 629 (1995);
State v. Allen,
323 N.C. 208, 372 S.E.2d 855 (1988),
sentence vacated on other
grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990);
State v.
Martin, 315 N.C. 667, 340 S.E.2d 326 (1986). In
Littlejohn, a
period of thirteen hours elapsed between the defendant's arrest
and the time he was taken before a magistrate.
Littlejohn, 340
N.C. at 758, 459 S.E.2d at 633. The defendant argued that he
would not have confessed if he had been taken before a magistrate
earlier. Nevertheless, we refused to find a substantial
violation of chapter 15A because the defendant had been advised
of his constitutional rights at the beginning of his
interrogation and would have received the same notification by a
magistrate.
Id. Similarly, in the instant case, defendant was
advised of his rights before he was asked questions regarding the
crimes he was suspected of committing. Defendant has not shown
he would not have confessed had he been advised of the same
rights again by a magistrate. Therefore, we cannot say hisconfession was the result of the delay in defendant being taken
before a magistrate.
See State v. Chapman, 343 N.C. 495, 471
S.E.2d 354 (1996) (a delay of ten and a half hours was not
unnecessary because of the number of crimes involved and the
investigators' rights to conduct the interrogation). Moreover,
because of the number of crimes to which defendant confessed and
the amount of time necessary to record the details of the crimes,
along with investigators' accommodation of defendant's request to
sleep, we conclude the delay in taking defendant before a
judicial official was not unnecessary within the meaning of
N.C.G.S. § 15A-501(2).
As part of defendant's first argument, we also address
whether there were substantial violations of subsections (3),
(4), or (5) of N.C.G.S. § 15A-501 which resulted in defendant's
confession. Subsections (3) and (4) allow police to take a
defendant to a place, other than before a magistrate, upon a
request by the defendant or to have the defendant identified.
There is no evidence that either occurred in the instant case.
Nevertheless, as stated above, there is no evidence that taking
defendant to the LEC before he saw a magistrate caused him to
confess. Therefore, no substantial violations of subsections (3)
and (4) resulted. As to subsection (5), defendant was advised of
his rights before investigators began any interrogation relating
to the crimes in this case. Although investigators talked with
defendant from approximately 6:45 p.m. until 10:00 p.m. before
reading him his
Miranda rights, there is no evidence police asked
defendant about any of the crimes to which he later confessed or
that any portion of defendant's confession was a result of the
delay during which he and investigators discussed unrelatedsubjects. For these reasons, we conclude there was no
substantial violation of N.C.G.S. § 15A-501 requiring defendant's
confession to be suppressed.
In his second argument, defendant contends the delay in
advising him of his
Miranda rights tainted his later confessions,
requiring them to be suppressed. Defendant argues the strategy
used by investigators to elicit his confession amounted to a
deliberately coercive or improper tactic which undermined his
free will and rendered his confession, given after he was advised
of his
Miranda rights, involuntary. He cites
Oregon v. Elstad,
470 U.S. 298, 84 L. Ed. 2d 222 (1985), and
State v. Barlow, 330
N.C. 133, 409 S.E.2d 906 (1991), as authority for his position.
However, defendant's reliance is misplaced as both cases are
inapposite to the issue before us.
In both
Elstad and
Barlow, the respective defendants made
incriminating statements before they were advised of their
Miranda rights. In
Elstad, the United States Supreme Court's
inquiry into whether a coercive or improper tactic undermined
the defendant's free will was part of an analysis to determine if
the later statements were tainted or caused by the prior,
unwarned incriminating statement.
See Elstad, 470 U.S. at 314,
84 L. Ed. 2d at 235. We performed a similar analysis in
Barlow.
See Barlow, 330 N.C. at 139, 409 S.E.2d at 910. In the instant
case, defendant made no prior incriminating statement. His
discussions with investigators dealt with subjects other than the
crimes involved, and although defendant mentioned that he knew
two of the victims and that he had used drugs, these statements
were voluntary and not inculpatory. Defendant's later
confessions could not be termed fruit of the poisonous tree,
see Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d
441, 455 (1963), because there was no prior inadmissible
statement or evidence to function as the poisonous tree.
Defendant's argument has no merit.
In his third argument, defendant contends his pretrial
statements to police should have been suppressed because
investigators induced him to confess by promising to allow him to
see his girlfriend and daughter. He argues the promise led him
to confess, rendering his confession involuntary and subject to
suppression as a violation of his due process rights under the
Fourteenth Amendment to the United States Constitution and
Article I, Sections 19 and 23 of the North Carolina Constitution.
We again disagree.
The voluntariness of a defendant's confession is determined
by viewing the totality of the circumstances.
State v. Corley,
310 N.C. 40, 47, 311 S.E.2d 540, 545 (1984). To be considered
improper and indicative of an involuntary confession, an
inducement to confess must convey hope or fear.
State v.
Wilson, 322 N.C. 91, 94, 366 S.E.2d 701, 703 (1988). An
improper inducement generating hope must promise relief from the
criminal charge to which the confession relates, not to any
merely collateral advantage.
State v. Pruitt, 286 N.C. 442,
458, 212 S.E.2d 92, 102 (1975). Moreover, where a promise or
statement indicating a defendant may receive some form of
benefit is made in response to a solicitation by a defendant, the
defendant's confession is not deemed involuntary.
See State v.
Richardson, 316 N.C. 594, 604, 342 S.E.2d 823, 831 (1986).
In the instant case, defendant made the request to
investigating officers that he be allowed to see his girlfriendand daughter. Investigators' statements that they would attempt
to contact defendant's girlfriend and the mother of his child
were made only in response to defendant's request. While
defendant referred to his request as a condition of his
confession, there is no evidence investigators used the request
as an inducement to obtain his confession. Further,
investigators advised defendant that the police had no control
over whether McKnight or Harrison would come to the station.
Moreover, when asked whether his confession was given in
exchange for the request to see his girlfriend and child,
defendant said it was not. As defendant's request had no
relation to relief from the charges faced by him, there was no
improper inducement in this situation.
See Pruitt, 286 N.C. at
458, 212 S.E.2d at 102. Defendant's argument is without merit,
and this assignment of error is overruled.
JURY SELECTION ISSUE
By an assignment of error, defendant next contends the trial
court erred by denying his challenge for cause of prospective
juror Thomas Bishop. Defendant argues the record shows Bishop
had formed an opinion regarding defendant's guilt which
disqualified him from serving as a juror pursuant to N.C.G.S. §
15A-1212(6). During
voir dire, Bishop indicated that he had
formed an opinion as to defendant's guilt due, in part, to
pretrial publicity and defense counsel's statement that the facts
in the case were not in dispute. However, the trial court
questioned Bishop, and the following exchange took place:
COURT: And would you be able to put aside what
counsel has said and any pretrial information that you
may have, namely what you have read and heard about the
case previously, and base your determination on theevidence that is present[ed] in open court and the
instructions on the law that I give you?
MR. BISHOP: Yes, sir.
Upon further questioning, Bishop repeatedly confirmed his ability
to set aside any information he had received from pretrial
publicity and from statements by counsel and decide the case
based on the evidence and the law as given by the trial court.
Challenges to the jury panel and the competency of jurors
are matters to be decided by the trial judge.
See N.C.G.S. §
15A-1211(b) (1999). N.C.G.S. § 15A-1212 contains no language
requiring mandatory dismissal of jurors and merely lists the
various grounds for making challenges to jurors.
State v.
Corbett, 309 N.C. 382, 389, 307 S.E.2d 139, 145 (1983). The
portion of the statute in question provides that a juror may be
removed by a challenge for cause on the ground that the juror
[h]as formed or expressed an opinion as to the guilt or
innocence of the defendant. N.C.G.S. § 15A-1212(6) (1999).
The trial court is not required to remove from the panel every
potential juror who has any preconceived opinions as to the
potential guilt or innocence of a defendant.
State v. Cummings,
326 N.C. 298, 308, 389 S.E.2d 66, 71 (1990). Where the trial
court can reasonably conclude from the
voir dire examination that
a prospective juror can disregard prior knowledge and
impressions, follow the trial court's instructions on the law,
and render an impartial, independent decision based on the
evidence, excusal is not mandatory.
State v. Green, 336 N.C.
142, 167, 443 S.E.2d 14, 29,
cert. denied, 513 U.S. 1046, 130 L.
Ed. 2d 547 (1994);
see also Irvin v. Dowd, 366 U.S. 717, 6 L. Ed.
2d 751 (1961). Defendant concedes in his brief that Bishop indicated his
ability to set aside his opinion and render a verdict based on
the law and evidence as presented in court. Defendant also
concedes that this Court's prior decisions hold contrary to his
argument on this issue. We perceive no reason to change or
reverse our prior holdings, and we decline to do so. This
assignment of error is overruled.
GUILT/INNOCENCE PHASE
By an assignment of error, defendant next contends the trial
court erred by denying his motion
in limine and overruling his
objections to the cross-examination of defense experts regarding
two additional and unrelated murders to which defendant confessed
after his arrest. During his confession to the crimes at issue
here, defendant also confessed to killing Tashanda Bethea in
South Carolina in April 1990 and Sharon Nance in North Carolina
in May 1992. During his presentation of evidence, defendant
offered the testimony of Colonel Robert K. Ressler, an expert in
the fields of criminology, crime scene analysis, serial
offenders, psychology of serial offenders, and criminal abnormal
psychology, and Dr. Ann W. Burgess, an expert in the fields of
serial offenders, crime classification, psycho-social
development, and mental illness.
Col. Ressler testified regarding a classification system he
used in studying serial offenders in which crimes and offenders
were categorized as organized, disorganized, or mixed. These
categories tend to correlate with the presence of a mental
illness or disorder. Organized offenders tend to be free from
actual mental illness but might display a type of sociopathic
behavior. Disorganized offenders tend to exhibit characteristicsof actual mental illness. Mixed offenders display
characteristics of organization and disorganization. In
Col. Ressler's opinion, the crimes in this case fit into the
mixed category, exhibiting signs of both organization and
disorganization. On direct examination, defendant's counsel
highlighted the disorganized characteristics in the nine murders
charged here in an effort to prove defendant's diminished mental
capacity or mental illness. On cross-examination, the State
elicited testimony from Col. Ressler that the crimes, including
the two earlier murders, displayed signs of organization, which
would point to a lack of mental illness.
Dr. Burgess, on direct examination, testified that defendant
was unable to form specific intent to commit the crimes with
which he was charged because of mental illness. The cross-
examination of Dr. Burgess related to her opinion that defendant
suffered from mental illness and that he created fantasies, acted
upon them, and could not differentiate the fantasies from
reality. The State questioned Dr. Burgess about the uncharged
murder of Bethea with regard to whether defendant was relating a
fantasy or reality to the expert during his interview. Dr.
Burgess mentioned both Bethea and Nance in a group of victims who
had been choked when the State asked her if defendant had
exercised control over the victims. The trial court gave a
limiting instruction to the jury after each mention of Bethea and
Nance during Dr. Burgess' cross-examination and during
Col. Ressler's cross-examination.
Defendant contends the cross-examination was improper under
Rule 403 because it was prejudicial and had no probative value as
impeachment under Rule 705. He concedes Rule 705 allows cross-examination of the basis of an expert's opinion even if the
evidence would not ordinarily be allowed, but argues the cross-
examination is subject to the Rule 403 balancing test for
prejudice. Defendant also argues Rule 705 does not give the
State carte blanche to introduce the basis of an adverse expert
opinion regardless of its prejudicial effect and probative
value.
State v. Coffey, 336 N.C. 412, 421, 444 S.E.2d 431, 436
(1994). For the reasons set forth below, we find no merit in
defendant's assignment of error.
Rule 705 allows for cross-examination of an expert witness
regarding the basis for any opinions given.
The expert may testify in terms of opinion or
inference and give his reasons therefor without prior
disclosure of the underlying facts or data, unless an
adverse party requests otherwise, in which event the
expert will be required to disclose such underlying
facts or data on direct examination or voir dire before
stating the opinion.
The expert may in any event be
required to disclose the underlying facts or data on
cross-examination. There shall be no requirement that
expert testimony be in response to a hypothetical
question.
N.C.G.S. § 8C-1, Rule 705 (1999) (emphasis added). In the
instant case, both experts testified that they were able to
classify or diagnose defendant, in part, by studying the acts to
which he confessed. Col. Ressler and Dr. Burgess reviewed
information about the two uncharged murders in formulating their
opinions. Under the broad scope of Rule 705, cross-examination
relating to the two murders was permissible to probe the basis
for the experts' opinions.
See State v. Lyons, 343 N.C. 1, 468
S.E.2d 204,
cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167 (1996).
Furthermore, under Rule 403, the determination of whether
relevant evidence should be excluded is a matter left to the
sound discretion of the trial court, and the trial court can bereversed only upon a showing of abuse of discretion.
See State
v. Pierce, 346 N.C. 471, 490, 488 S.E.2d 576, 587 (1997). In the
instant case, defendant has not demonstrated any abuse of
discretion by the trial court. To the contrary, a review of the
record reveals the trial court was aware of the potential danger
of unfair prejudice to defendant and was careful to give a proper
instruction limiting the jury's consideration of the evidence
solely to the basis for the experts' opinions. The trial court
gave the instruction during each disputed instance of cross-
examination. For these reasons, we conclude defendant was not
prejudiced by this cross-examination. This assignment of error
is overruled.
By an assignment of error, defendant next contends the trial
court erred in denying parts of his requested instructions on the
element of deliberation. The requested instructions consisted of
portions of case law which provided additional definitions for
deliberation, including:
The intent to kill must arise from a fixed
determination previously formed after
weighing the matter.
State v. Myers, 309
N.C. 78[, 305 S.E.2d 506 (1983)].
. . . .
. . . Deliberation refers to a
steadfast resolve and deep-rooted purpose,
or a design formed after carefully
considering the consequences.
State v.
Thomas, 118 N.C. 1113[, 24 S.E. 431] (1896).
. . . .
While the terms premeditate and deliberate are
sometimes used interchangeably, they have separate
legal meanings. 'Premeditate' involves the idea of
prior consideration, while 'deliberation' rather
indicates reflection, a weighing of the consequences of
the act in more or less calmness.
State v. Exum, 138
N.C. 599[, 50 S.E. 283] (1905).
. . . The true test [of deliberation], however,
is not the duration of time as much as it is the
extent of the reflection. N.C.P.I.[--Crim.] 206.14;
State v. Buchanan, 287 N.C. 408[, 215 S.E.2d 80]
(1975).
(Citation omitted.) The trial court instructed the jury,
utilizing the North Carolina pattern jury instructions, which
include the following portion defining deliberation:
that the defendant acted with deliberation, which means
that he acted while he was in a cool state of mind.
This does not mean that there had to be a total absence
of passion or emotion. If the intent to kill was
formed with a fixed purpose, not under the influence of
some suddenly aroused violent passion, it is immaterial
that the defendant was in a state of passion or excited
when the intent was carried into effect.
N.C.P.I.--Crim. 206.14 (1994). Defendant concedes this Court has
approved the use of the pattern instructions for first-degree
murder, including the element of deliberation,
see,
e.g.,
State
v. Lewis, 346 N.C. 141, 484 S.E.2d 379 (1997);
State v. Jones,
342 N.C. 628, 467 S.E.2d 233 (1996), but argues this Court's
cases and the pattern instructions have strayed from the clear
intent of the General Assembly's 1893 creation of the crime of
first-degree murder and from solid precedent. Defendant argues
the definitions of deliberation in his requested instructions
give it a common-sense meaning and adequately supplement the
pattern jury instructions, which refer to a cool state of mind,
but not a total absence of passion or emotion.
N.C.P.I.--Crim. 206.14. Defendant argues the pattern
instructions are meaningless and confusing without the
supplementation. We disagree.
This Court has consistently held that a trial court is not
required to give a requested instruction verbatim. Rather, when
the request is correct in law and supported by the evidence, thecourt must give the instruction in substance.
State v. Ball,
324 N.C. 233, 238, 377 S.E.2d 70, 73 (1989). Our review of the
pattern instructions reveals they provide an accurate definition
of deliberation. Defendant's proposed instructions merely
articulate variations on the definition. Thus, the trial court
gave defendant's requested instructions in substance. Ever
mindful of our duty to scrutinize the pattern instructions for
federal and state constitutional and statutory conflicts,
see
Jones, 342 N.C. at 633, 467 S.E.2d at 235, we conclude the trial
court did not err in refusing to give defendant's additional
requested instructions. This assignment of error is overruled.
CAPITAL SENTENCING PROCEEDING
Defendant assigns error to the trial court's denial of his
motion for a peremptory instruction regarding two statutory
mitigating circumstances: N.C.G.S. § 15A-2000(f)(2), [t]he
capital felony was committed while the defendant was under the
influence of mental or emotional disturbance, and N.C.G.S. §
15A-2000(f)(6), [t]he capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was impaired. Defendant argues the
instructions were required because there was uncontroverted
evidence in the record supporting both circumstances. We
disagree.
Upon request, a trial court should give a peremptory
instruction for any mitigating circumstance, whether statutory or
nonstatutory, if it is supported by uncontroverted evidence.
See
State v. White, 349 N.C. 535, 568, 508 S.E.2d 253, 274 (1998),
cert. denied, ___ U.S. ___, 144 L. Ed. 2d 779 (1999).
Conversely, if the evidence in support of the mitigatingcircumstance is controverted, a peremptory instruction is not
required.
See State v. Womble, 343 N.C. 667, 683, 473 S.E.2d
291, 300 (1996),
cert. denied, 519 U.S. 1095, 136 L. Ed. 2d 719
(1997).
In the instant case, defendant contends the testimony of
Dr. Burgess during the guilt/innocence phase of the trial and the
testimony of Dr. Faye Sultan, a clinical psychologist, during the
sentencing phase of the trial was uncontroverted and supported
peremptory instructions for the (f)(2) and (f)(6) mitigating
circumstances. Dr. Burgess testified that defendant suffered
from mental illness which negated his ability to form specific
intent. Dr. Sultan testified that defendant suffered from a
number of mental disorders which impaired his ability to conform
his conduct to the law.
After a complete review of the record, we conclude the
testimony upon which defendant relies was controverted by
evidence which tended to show defendant's behavior was not
consistent with the mitigating circumstances. In fact, the
issues of whether defendant was under the influence of a mental
or emotional disturbance and whether he was able to conform his
actions to the law were heatedly contested by the prosecution.
The State presented testimony by Sadie McKnight, who had lived
with defendant for two years until shortly before he was
arrested. She testified that she had not observed anything
unusual about defendant and had not known him to experience
hallucinations. Moreover, the State presented evidence that
defendant held numerous jobs involving management
responsibilities during the time these crimes were committed and
that he maintained a relationship with his girlfriend and otherwomen during this time which did not involve any type of abuse.
Further, defendant was able to carry out nine premeditated,
calculated, and vicious murders while carefully avoiding
detection. As the evidence was, in fact, controverted, the trial
court did not err, and this assignment of error is overruled.
Next, defendant makes two assignments of error regarding the
N.C.G.S. § 15A-2000(e)(6) aggravating circumstance, which
provides, [t]he capital felony was committed for pecuniary
gain. Defendant argues the trial court's instruction was
erroneous and the trial court erred in submitting the aggravating
circumstance to the jury for consideration in the murder of
Caroline Love. First, we address the propriety of the trial
court's instruction. The trial court gave the following
instruction: A murder is committed for pecuniary gain if the
defendant, when he commits it, has obtained, or intends or
expects to obtain, money or some other thing which can be valued
in money, either as compensation for committing it, or as a
result of the death of the victim. Defendant claims the
instruction allows the jury to find the existence of the
aggravating circumstance in a situation where the defendant
obtained money or something of value as a result of the murder
rather than where the defendant committed the murder for the
purpose of obtaining the money or valuable thing. Defendant did
not object at trial but asserts the instruction was plain error
with respect to the three victims for which it was submitted:
Caroline Love, Shawna Hawk, and Valencia Jumper. We disagree.
[T]o reach the level of 'plain error' . . . , the error in
the trial court's jury instructions must be 'so fundamental as to
amount to a miscarriage of justice or which probably resulted inthe jury reaching a different verdict than it otherwise would
have reached.'
State v. Collins, 334 N.C. 54, 62, 431 S.E.2d
188, 193 (1993) (quoting
State v. Bagley, 321 N.C. 201, 213, 362
S.E.2d 244, 251 (1987),
cert. denied, 485 U.S. 1036, 99 L. Ed. 2d
912 (1988)). This Court has previously addressed the sufficiency
of the pecuniary gain instruction in the context of plain error.
In
State v. Bacon, 337 N.C. 66, 99-100, 446 S.E.2d 542, 559-60
(1994),
cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995),
this Court declined to find plain error with regard to the
pecuniary gain instruction because the trial court's instruction
was in accordance with the North Carolina pattern jury
instruction and because the wording on the issues and
recommendation form indicated that the jury found that pecuniary
gain was the purpose for the murder. Similarly, in
State v.
Bishop, 343 N.C. 518, 556-57, 472 S.E.2d 842, 862-63 (1996),
cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997), this Court
again declined to find plain error where the instruction given
was substantially similar to the pattern jury instruction, and
the jury answered the question of whether the murder was
committed for pecuniary gain in the affirmative.
In the instant case, the trial court's instruction for the
pecuniary gain aggravating circumstance mirrored the pattern jury
instruction.
See N.C.P.I.--Crim. 150.10 (1998). On the issues
and recommendation form for the murders of Love, Hawk, and
Jumper, the circumstance was stated: Was this murder committed
for a pecuniary gain? The jurors answered yes in each case,
indicating they found that the purpose behind the murder was
pecuniary gain. In light of our prior holdings and the jury's
responses, we decline to find plain error. Next, we address the sufficiency of the evidence in support
of the submission of the pecuniary gain aggravating circumstance
in the murder of Caroline Love. Defendant contends the evidence
was insufficient because it did not show that obtaining a roll of
quarters from Love was the purpose for the murder. We disagree.
In determining the sufficiency of the evidence to submit an
aggravating circumstance to the jury, the trial court must
consider the evidence in the light most favorable to the State,
with the State entitled to every reasonable inference to be drawn
therefrom.
State v. Syriani, 333 N.C. 350, 392, 428 S.E.2d 118,
141,
cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). The
State presented evidence that Love had obtained a roll of
quarters from her employer as she left work the night of her
murder. The manager of the Bojangles' restaurant where Love
worked, John Chandler, testified that Love asked him for a roll
of quarters in exchange for a ten-dollar bill so that she could
do her laundry. Investigator Rice testified that Chandler told
him about the quarters and that he was unable to find them when
he searched Love's home. Further, in his statement to police
which was given in redacted form to the jury, defendant admitted
taking the quarters from Love's apartment. Taken in the light
most favorable to the State, this evidence is such that a jury
could reasonably conclude pecuniary gain was a motive for the
murder of Caroline Love. This assignment of error is overruled.
Defendant next assigns error to the trial court's overruling
of defendant's objection to statements made by the prosecution
during its sentencing phase closing argument. Defendant assigns
error to the following argument: I may tell you that in the Caroline Love case,
Aggravating Circumstance Number 1 is, it was during the
course of a rape. What does that tell you? That's a
one-liner, isn't it? Remember what it was. Think
about a women [sic] being raped. Think about that
violation that she went through, that Shawna Hawk went
through, and I could list each of those names for you
again. You think about that. You think about being
murdered during the course of being raped.
The trial court overruled defendant's objection to the last
sentence in the preceding argument. Defendant contends the
ruling was contrary to this Court's holding in
State v. McCollum,
334 N.C. 208, 433 S.E.2d 144 (1993),
cert. denied, 512 U.S. 1254,
129 L. Ed. 2d 895 (1994).
In
McCollum, this Court held that an argument asking jurors
'to put themselves in place of the victims will not be
condoned.'
Id. at 224, 433 S.E.2d at 152 (quoting
United States
v. Pichnarcik, 427 F.2d 1290, 1292 (9th Cir. 1970)). However,
this Court has consistently allowed arguments where the
prosecution has asked the jury to imagine the emotions and fear
of a victim.
See State v. Warren, 348 N.C. 80, 109, 499 S.E.2d
431, 447,
cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998).
In the instant case, the prosecutor did not ask the jury members
to put themselves in the place of the victim; rather, the
prosecutor asked the jury to think about the murder and the rape
occurring simultaneously as alleged in the aggravating
circumstance. This assignment of error is overruled.
Defendant also assigns error to the trial court's denial of
his motion for mistrial based on the prosecution's improper
argument. In addition to the statement above, defendant also
objected to the following argument of the prosecution:
The State asked each and every one of you during
jury deliberations, would you promise not to base yourverdict on sympathy for the victims or for the
Defendant. And you agreed not to.
Why does the Defense not want you to? Because in
that sympathy game, ladies and gentlemen of the jury,
it's a hands-down victory. That's not what we're here
about. The State could fill this courtroom with the
cries of mothers and fathers --
The trial court sustained defendant's objection to the last
sentence above, allowed his motion to strike, and instructed the
jury not to consider the statement. Defendant contends the
declaration of a mistrial was warranted because the prosecution
injected grossly improper considerations into an already
emotionally charged case, which prevented him from obtaining a
fair sentencing hearing. We disagree.
A trial court must declare a mistrial if there occurs
during the trial an error or legal defect in the proceedings, or
conduct inside or outside the courtroom, resulting in substantial
and irreparable prejudice to the defendant's case. N.C.G.S. §
15A-1061 (1999). The scope of appellate review . . . is limited
to whether in denying the motion[] for a mistrial, there has been
an abuse of judicial discretion.
State v. Boyd, 321 N.C. 574,
579, 364 S.E.2d 118, 120 (1988).
The trial court sustained defendant's objection to the
statement above and instructed the jury not to consider it. Any
prejudice to defendant was remedied by the trial court's
instruction. As the statements upon which defendant based his
motion for mistrial were either proper or not prejudicial, we
discern no irreparable prejudice arising from the prosecutor's
argument. The trial court did not abuse its discretion by
denying defendant's motion; therefore, this assignment of error
is overruled.
PRESERVATION ISSUES
Defendant raises eleven additional issues which he concedes
have been decided previously by this Court contrary to his
position: (1) the trial court erred in denying defendant's
motions to increase the number of peremptory challenges; (2) the
jury's determination that the murders were especially heinous,
atrocious, or cruel was based on unconstitutionally vague
instructions which failed to distinguish death-eligible murders
from murders not death-eligible; (3) the trial court's capital
sentencing jury instructions defining defendant's burden to prove
mitigating circumstances to the satisfaction of each juror did
not adequately guide the jury's discretion about the requisite
degree of proof; (4) the trial court erred by allowing the jury
to refuse to give effect to mitigating evidence if the jury
deemed the evidence not to have mitigating value; (5) the trial
court's instruction about the course of conduct aggravating
circumstance was vague and overbroad; (6) the trial court erred
by submitting, over defendant's objection, defendant's age as a
mitigating circumstance; (7) the trial court erred by instructing
jurors they must be unanimous to answer no for Issues One,
Three, and Four, and to reject the death penalty in their
punishment recommendation; (8) the trial court erred by denying
defendant's motion to question prospective jurors about their
understanding of the meaning of a life sentence for first-degree
murder and of parole eligibility for a life sentence for first-
degree murder; (9) the trial court erred by denying defendant's
motion to bifurcate the guilt/innocence and penalty phases of the
trial into two proceedings with separate juries; (10) the trial
court erred by sentencing defendant to death because the deathpenalty is inherently cruel and unusual; and (11) the trial court
erred by sentencing defendant to death because the North Carolina
capital sentencing scheme is unconstitutionally vague and
overbroad.
Defendant makes these arguments for the purpose of
permitting this Court to reexamine its prior holdings and to
preserve these arguments for any possible further judicial review
in this case. We have thoroughly considered defendant's
arguments on these issues and find no compelling reason to depart
from our prior holdings. Accordingly, these assignments of error
are overruled.
PROPORTIONALITY REVIEW
Finally, defendant contends the death sentences imposed were
excessive or disproportionate. Having concluded that defendant's
trial and capital sentencing proceeding were free from
prejudicial error, it is our statutory duty to ascertain as to
each murder (1) whether the evidence supports the jury's findings
of the aggravating circumstances upon which the sentence of death
was based; (2) whether the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary
factor; and (3) whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. N.C.G.S. §
15A-2000(d)(2) (1999).
In the instant case, defendant was convicted of nine counts
of first-degree murder. Each conviction was based both on
premeditation and deliberation and on the felony murder rule.
Following the capital sentencing proceeding as to the Love
murder, the jury found the following submitted aggravatingcircumstances: the murder was committed for the purpose of
avoiding lawful arrest, N.C.G.S. § 15A-2000(e)(4); the murder was
committed by defendant while defendant was engaged in the
commission of a rape, N.C.G.S. § 15A-2000(e)(5); the murder was
committed by defendant while defendant was engaged in the
commission of a sexual offense, N.C.G.S. § 15A-2000(e)(5); the
murder was committed for pecuniary gain, N.C.G.S. §
15A-2000(e)(6); the murder was especially heinous, atrocious, or
cruel, N.C.G.S. § 15A-2000(e)(9); and the murder was part of a
course of conduct in which defendant engaged and which included
the commission by defendant of other crimes of violence against
another person or persons, N.C.G.S. § 15A-2000(e)(11).
As to the Hawk murder, the jury found the following
submitted aggravating circumstances: the murder was committed
for the purpose of avoiding lawful arrest, N.C.G.S. §
15A-2000(e)(4); the murder was committed by defendant while
defendant was engaged in the commission of a rape, N.C.G.S. §
15A-2000(e)(5); the murder was committed by defendant while
defendant was engaged in the commission of a sexual offense
(fellatio), N.C.G.S. § 15A-2000(e)(5); the murder was committed
by defendant while defendant was engaged in the commission of a
sexual offense (cunnilingus), N.C.G.S. § 15A-2000(e)(5); the
murder was committed for pecuniary gain, N.C.G.S. §
15A-2000(e)(6); the murder was especially heinous, atrocious, or
cruel, N.C.G.S. § 15A-2000(e)(9); and the murder was part of a
course of conduct in which defendant engaged and which included
the commission by defendant of other crimes of violence against
another person or persons, N.C.G.S. § 15A-2000(e)(11). As to the Spain murder, the jury found the following
submitted aggravating circumstances: the murder was committed by
defendant while defendant was engaged in the commission of a
rape, N.C.G.S. § 15A-2000(e)(5); the murder was committed by
defendant while defendant was engaged in the commission of a
robbery, N.C.G.S. § 15A-2000(e)(5); the murder was especially
heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9); and the
murder was part of a course of conduct in which defendant engaged
and which included the commission by defendant of other crimes of
violence against another person or persons, N.C.G.S. §
15A-2000(e)(11).
As to the Jumper murder, the jury found the following
submitted aggravating circumstances: the murder was committed by
defendant while defendant was engaged in the commission of a
rape, N.C.G.S. § 15A-2000(e)(5); the murder was committed by
defendant while defendant was engaged in the commission of a
sexual offense, N.C.G.S. § 15A-2000(e)(5); the murder was
committed by defendant while defendant was engaged in the
commission of arson, N.C.G.S. § 15A-2000(e)(5); the murder was
committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); the
murder was especially heinous, atrocious, or cruel, N.C.G.S. §
15A-2000(e)(9); and the murder was part of a course of conduct in
which defendant engaged and which included the commission by
defendant of other crimes of violence against another person or
persons, N.C.G.S. § 15A-2000(e)(11).
As to the Stinson murder, the jury found the following
submitted aggravating circumstances: the murder was committed by
defendant while defendant was engaged in the commission of a
rape, N.C.G.S. § 15A-2000(e)(5); the murder was committed bydefendant while defendant was engaged in the commission of a
sexual offense, N.C.G.S. § 15A-2000(e)(5); the murder was
especially heinous, atrocious, or cruel, N.C.G.S. §
15A-2000(e)(9); and the murder was part of a course of conduct in
which defendant engaged and which included the commission by
defendant of other crimes of violence against another person or
persons, N.C.G.S. § 15A-2000(e)(11).
As to the Mack murder, the jury found the following
submitted aggravating circumstances: the murder was committed by
defendant while defendant was engaged in the commission of a
rape, N.C.G.S. § 15A-2000(e)(5); the murder was committed by
defendant while defendant was engaged in the commission of a
robbery, N.C.G.S. § 15A-2000(e)(5); the murder was especially
heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9); and the
murder was part of a course of conduct in which defendant engaged
and which included the commission by defendant of other crimes of
violence against another person or persons, N.C.G.S. §
15A-2000(e)(11).
As to the Baucom murder, the jury found the following
submitted aggravating circumstances: the murder was committed by
defendant while defendant was engaged in the commission of a
rape, N.C.G.S. § 15A-2000(e)(5); the murder was committed by
defendant while defendant was engaged in the commission of a
robbery, N.C.G.S. § 15A-2000(e)(5); the murder was especially
heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9); and the
murder was part of a course of conduct in which defendant engaged
and which included the commission by defendant of other crimes of
violence against another person or persons, N.C.G.S. §
15A-2000(e)(11). As to the Henderson murder, the jury found the following
submitted aggravating circumstances: the murder was committed
for the purpose of avoiding lawful arrest, N.C.G.S. §
15A-2000(e)(4); the murder was committed by defendant while
defendant was engaged in the commission of a rape, N.C.G.S. §
15A-2000(e)(5); the murder was committed by defendant while
defendant was engaged in the commission of a robbery, N.C.G.S. §
15A-2000(e)(5); the murder was especially heinous, atrocious, or
cruel, N.C.G.S. § 15A-2000(e)(9); and the murder was part of a
course of conduct in which defendant engaged and which included
the commission by defendant of other crimes of violence against
another person or persons, N.C.G.S. § 15A-2000(e)(11).
As to the Slaughter murder, the jury found the following
submitted aggravating circumstances: the murder was committed by
defendant while defendant was engaged in the commission of a
rape, N.C.G.S. § 15A-2000(e)(5); the murder was committed by
defendant while defendant was engaged in the commission of a
robbery, N.C.G.S. § 15A-2000(e)(5); the murder was especially
heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9); and the
murder was part of a course of conduct in which defendant engaged
and which included the commission by defendant of other crimes of
violence against another person or persons, N.C.G.S. §
15A-2000(e)(11).
As to each murder, three statutory mitigating circumstances
were submitted for the jury's consideration: (1) the murder was
committed while defendant was under the influence of mental or
emotional disturbance, N.C.G.S. § 15A-2000(f)(2); (2) defendant's
capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired,N.C.G.S. § 15A-2000(f)(6); and (3) defendant's age at the time of
the crime, N.C.G.S. § 15A-2000(f)(7). The jury found N.C.G.S. §
15A-2000(f)(2) for each murder, but found N.C.G.S. §
15A-2000(f)(6) only in the murders of Henderson, Baucom, and
Slaughter, and did not find N.C.G.S. § 15A-2000(f)(7) for any of
the murders. As to each murder, of the thirty-seven nonstatutory
mitigating circumstances submitted, twenty-four were found by the
jury to exist and have mitigating value.
After a thorough review of the record, including the
transcripts, briefs, and oral arguments, we conclude the evidence
fully supports the aggravating circumstances found by the jury.
Further, we find no indication the sentences of death were
imposed under the influence of passion, prejudice, or any other
arbitrary factor. We therefore turn to our final statutory duty
of proportionality review.
The purpose of proportionality review is to eliminate the
possibility that a person will be sentenced to die by the action
of an aberrant jury. State v. Holden, 321 N.C. 125, 164-65, 362
S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed.
2d 935 (1988). Proportionality review also acts [a]s a check
against the capricious or random imposition of the death
penalty. State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510,
544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980).
In conducting proportionality review, we compare the present case
with other cases in which this Court has concluded that the death
penalty was disproportionate. See McCollum, 334 N.C. at 240, 433
S.E.2d at 162. This Court has determined the death sentence to
be disproportionate on seven occasions: State v. Benson, 323
N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713
(1986), overruled on other grounds by State v. Gaines, 345 N.C.
647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d
177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d
373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985);
State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v.
Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson,
309 N.C. 26, 305 S.E.2d 703 (1983).
We conclude this case is not substantially similar to any
case in which this Court has found the death penalty
disproportionate. First, defendant was convicted of nine counts
of first-degree murder. This Court has never found a sentence of
death disproportionate in a case where the jury has found a
defendant guilty of murdering more than one victim. See State v.
Goode, 341 N.C. 513, 552, 461 S.E.2d 631, 654 (1995).
Additionally, the jury convicted defendant for each murder
under the theory of premeditation and deliberation. This Court
has stated that [t]he finding of premeditation and deliberation
indicates a more cold-blooded and calculated crime. State v.
Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989), sentence
vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604
(1990).
Finally, in each murder, the jury found the following three
aggravating circumstances: (1) [t]he capital felony was
committed while the defendant was engaged, or was an aider or
abettor, in the commission of, or an attempt to commit, or flight
after committing or attempting to commit, any homicide, robbery,
rape or a sex offense, arson, burglary, kidnapping, or aircraft
piracy or the unlawful throwing, placing, or discharging of adestructive device or bomb, N.C.G.S. § 15A-2000(e)(5);
(2) [t]he capital felony was especially heinous, atrocious, or
cruel, N.C.G.S. § 15A-2000(e)(9); and (3) [t]he murder for
which the defendant stands convicted was part of a course of
conduct in which the defendant engaged and which included the
commission by the defendant of other crimes of violence against
another person or persons, N.C.G.S. § 15A-2000(e)(11). There
are four statutory aggravating circumstances which, standing
alone, this Court has held sufficient to support a sentence of
death. See Bacon, 337 N.C. at 110 n.8, 446 S.E.2d at 566 n.8.
The N.C.G.S. § 15A-2000(e)(5), (e)(9), and (e)(11) statutory
aggravating circumstances, which the jury found here, are among
those four. See id.
We also compare this case with the cases in which this Court
has found the death penalty to be proportionate. While we review
all of the cases in the pool of similar cases when engaging in
our statutorily mandated duty of proportionality review, we
reemphasize that we will not undertake to discuss or cite all of
those cases each time we carry out that duty. State v. Williams,
308 N.C. 47, 81, 301 S.E.2d 335, 356, cert. denied, 464 U.S. 865,
78 L. Ed. 2d 177 (1983). Because of the number of victims and
the vicious, serial nature of the crimes, this case is unlike any
other in North Carolina history. As such, it suffices to say
this case is more similar to cases in which we have found the
sentence of death proportionate than to those in which we have
found it disproportionate.
Accordingly, we conclude defendant received a fair trial and
capital sentencing proceeding, free from prejudicial error, andthe sentences of death recommended by the jury and entered by the
trial court are not disproportionate.
NO ERROR.
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