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North Carolina v. Eason

Filed As Corrected: April 3, 1991.

STATE OF NORTH CAROLINA
v.
JERRY WAYNE EASON



Appeal of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of life imprisonment for first degree murder entered by Grant, J., at the 17 July 1989 Criminal Session of Superior Court, Lenoir County. On 21 December 1989, the Supreme Court allowed the defendant's motion to bypass the Court of Appeals on the appeal of his first degree arson conviction.

Mitchell, Justice.

Mitchell

The defendant Jerry Wayne Eason was tried non-capitally upon proper bills of indictment charging him with first degree murder and arson of a mobile home. A jury found the defendant guilty of both offenses as charged. The trial court then entered judgment sentencing the defendant to imprisonment for life for the first degree murder conviction and to a consecutive term of imprisonment for thirty years for the arson conviction. On appeal, the defendant brings forward numerous assignments of error which we address seriatim. We conclude that the defendant received a fair trial free from prejudicial error.

The State's evidence at trial tended to show that on 4 August 1988, Guy Vernon Warren was found dead amongst the burned remains of his mobile home. He was last seen alive at approximately 11:45 p.m. on 3 August 1988. The victim's body was charred all over with the exception of a small area on the front which had been against the floor, and the facial features were burned beyond recognition. A neighbor could identify the victim's body only by

a scar on the neck. An autopsy revealed that the victim had been shot three times in the chest.

SBI Agent Phillip Brinkley who investigated the scene opined that the fire was of an incendiary origin ignited by an open flame source next to the point where the body was found in the center of the mobile home where the victim's bedroom had been located. Near the mobile home the agent observed a pickup truck the victim had been using, which was owned by Terry Moore. All four tires on the vehicle bore slash marks and were flat.

Dennis Hayes testified that approximately three weeks before the murder, the defendant suffered facial cuts during a fight with the victim. Hayes further testified that he and the defendant discussed the fight while they were shooting pool on 3 August 1988. During the conversation, the defendant stated he was going to get even.

Phillip Mitchum testified that he was with the defendant until 2:30 a.m. on 4 August 1988. When the defendant got out of Mitchum's truck, Mitchum saw the handle of a small gun wrapped in a cloth in defendant's possession.

Melissa Bush, a nine-year-old girl, testified that the defendant was in her home on the evening of 3 August 1988. She testified that he pulled out a gun and said, "I want to kill somebody tonight."

Sandy Potter, Melissa's mother, testified that the defendant came to her house with Mitchum at about 7:30 or 8:00 p.m. on 3 August 1988. Potter was living at the time with the defendant's half-brother. Potter said the defendant was upset and had been drinking. He had a small gun with him, which she identified as being similar to State's Exhibit No. 7, a .25 caliber Raven automatic pistol. The defendant kept saying that he was going to get back at somebody who had "messed him up." Earlier in the day, Potter had seen the defendant with a long knife at his house. She identified that knife as being the same knife that was recovered from the defendant's house during a search by investigators.

Roger Brown and Raeford Page testified that they had previously co-owned a .25 caliber automatic pistol which Page sold to the defendant for $35.00. They had fired that pistol and other guns at a point behind Brown's home. During the investigation of the victim Warren's death, an investigator went with them to that site and recovered six spent projectiles and four spent shell casings.

Captain Lester Gosnell of the Lenoir County Sheriff's Department testified that the defendant was arrested at approximately 10:27 a.m. on 4 August 1988 and taken to the sheriff's department where he was read his Miranda rights. After waiving his Miranda rights, the defendant stated that he came home at 11:00 p.m. on 3 August 1988 and stayed there until he was arrested. He stated that he had been in a fight with the victim on an earlier date. During that incident, the victim had hit the defendant causing an injury to his mouth which required twenty stitches. The defendant said he did not own any firearms other than a 7.35 millimeter bolt action rifle and did not know about anything happening to the victim; however, he added that whatever the victim got, he deserved. A search of the defendant's residence pursuant to a search warrant produced a large knife, an empty box of Federal .25 caliber automatic bullets, and a spent .25 caliber shell casing.

Susan Komar, an SBI Agent, was qualified as an expert in firearms and tool mark identification and gave her opinion that the .25 caliber shell casing found at the defendant's home and two of the spent .25 caliber shell casings recovered behind Brown's home had been fired from the same gun. Moreover, she testified that the three .25 caliber projectiles removed from the victim and the six .25 caliber projectiles found behind Brown's home had been fired by the same weapon. She stated that the projectiles were consistent with either Remington of Federal manufactured ammunition. In addition, she compared the cuts in the four tires of the pickup truck at the victim's home with a test cut made using the knife found in the defendant's home. She testified that the knife found in the defendant's residence made the cut in one of the tires. The other three tire cuts had microscopic characteristics similar to the test cut, but she could not make a conclusive match.

After the defendant was arrested, he underwent an evaluation at Dorothea Dix Hospital. During the evaluation period, he and Sandy Potter corresponded by letter. Potter testified that in one of his letters to her, the defendant indicated that "he was satisfied that the SOB knew who he was before he died."

The defendant introduced no evidence at trial.

I.

The Defendant's Appeal

[1] By his first assignment of error, the defendant contends that the trial court erred in refusing to require his mother, Doris T.

Hoffman, to answer questions during a voir dire hearing concerning the defendant's motion to suppress items seized pursuant to a search warrant. The defendant's attack on the search warrant focused on the alleged use of untruthful information to establish probable cause for the issuance. During the voir dire hearing on the defendant's motion, Captain Gosnell testified that Doris Hoffman met him on the morning of 4 August 1988 at the Lenoir County Sheriff's Department. She said the defendant had told her that earlier that morning he had shot Guy Warren three times and set Warren's mobile home on fire. She also stated that the defendant had admitted slicing the tires on a vehicle owned by Terry Moore.

Gosnell relied upon the information supplied by Hoffman in his affidavit establishing probable cause for the search warrant. On 11 January 1989, Hoffman testified under oath in a bond hearing and admitted talking to Gosnell on 4 August 1988 but denied telling him that the defendant had said anything about killing Warren.

After Gosnell testified during the voir dire hearing on the defendant's motion to suppress, the defendant called Hoffman who, after answering preliminary questions, invoked her fifth amendment privilege against self-incrimination and refused to answer questions concerning anything the defendant may have told her about killing Guy Warren or questions concerning anything she may have told Gosnell on the morning of 4 August 1988. When Hoffman invoked the privilege and refused to answer questions, the defendant requested that the trial court compel her to answer. The trial court denied all such requests.

At the conclusion of Hoffman's testimony, the trial court had the prosecutor state for the record the nature of the charges pending against Hoffman. The prosecutor noted for the record that based on her testimony at the 11 January 1989 bond hearing, Hoffman had been charged with giving false information to a police officer. She had been convicted of that charge in district court, and the case was then on appeal for trial de novo in superior court.

An individual has the right to invoke her fifth amendment privilege to avoid being compelled to give testimony which might make her subject to prosecution under state or federal laws. U.S. Const. amend. V; N.C. Const. art. I, § 23. When the individual invokes the fifth amendment privilege, the trial court must determine whether the question is such that it may reasonably be inferred that the answer may be self-incriminating. See, e.g., Hoffman Page 419} v. United States, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 1124 (1951); Lafontaine v. Southern Underwriters, 83 N.C. 132, 139 (1880). In situations where the trial court determines that the answer will not be self-incriminating, the trial court may compel the individual to answer the question. Id. In this case, at the time of the voir dire hearing, Hoffman had been convicted of giving false information to the police about the defendant, and her case was on appeal for trial de novo in superior court. When Hoffman invoked her privilege at the voir dire hearing, she was being asked to testify about the very incident which led to her conviction and for which she still faced trial de novo. In other words, Hoffman invoked her fifth amendment privilege for the very purpose the protections embodied in that amendment were created. Thus, Hoffman had a valid claim of privilege, and the trial court did not err in denying the defendant's motion to compel her to testify. This assignment of error is without merit.

[2] By his next assignment of error, the defendant contends the trial court erred in concluding that the statements of Hoffman included in the search warrant affidavit possessed sufficient aspects of reliability and credibility to establish probable cause. The defendant alleges that Gosnell's affidavit did not contain sufficient facts to permit the magistrate to find that Hoffman's information was reliable and credible; therefore, there was no basis upon which the magistrate could conclude probable cause existed. This assignment is without merit.

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed.

State v. Arrington, 311 N.C. 633, 638, 319 S.E.2d 254, 257-58 (1984) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548 (1983)). This approach to determining probable cause is known as the totality of the circumstances analysis. Id. In this case, the informant who provided the information for the search warrant was Doris T. Hoffman, a "citizen-informant" whose name appeared

in the search warrant affidavit. The fact that Hoffman was named and identified as Gosnell's informant in the search warrant affidavit provided the magistrate with enough information to permit him to determine that Hoffman was reliable. See People v. Simon, 107 A.D.2d 196, 198, 486 N.Y.S.2d 118, 120 (1985) (individual's status as a named and identified private citizen is sufficient to establish his reliability); cf. United States v. Harris, 403 U.S. 573, 599, 29 L. Ed. 2d 723, 743 (1971) (Harlan, J., dissenting) (the citizen informant is the most credible type of informant); People v. Glaubman, 175 Colo. 41, 51, 485 P.2d 711, 717 (1971) (when an ordinary citizen comes forward with reports of criminal activity, there is no need to subject the information to the same special scrutiny given information supplied by unidentified or "confidential" informants).

Further, the affidavit before the magistrate stated, inter alia, that Hoffman was the defendant's mother and that at 3:54 a.m. on 4 August 1988, the defendant came to her house and told her he had just killed Guy Warren by shooting him three times and setting his bed on fire. The affidavit also stated that when the defendant came to Hoffman's house he had a pistol, a shotgun, and a big knife with him. Applying the totality of the circumstances test prescribed in Arrington and giving proper deference to the decision of the magistrate to issue the search warrant, we conclude that there was more than a "substantial basis" for his determination that probable cause existed.

[3] By his next assignment of error, the defendant contends the trial court erred in denying his motion to suppress evidence seized pursuant to the search warrant because the officer serving it failed to comply with N.C.G.S. § 15A-252. We decline to consider this assignment because the defendant failed to preserve this question for appellate review. In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent. N.C.R. App. P. 10(b)(1). Nothing in the record before us indicates that the trial court had anything before it referring to the officer's alleged violation of the statute when it denied the defendant's motion. This Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal. State v. Smith, 50 N.C. App. 188, 272 S.E.2d 621 (1980).

{PA}

Page 421} [4] By his next assignment of error, the defendant contends that the trial court erred by allowing the State to introduce State's Exhibit No. 37A, a plastic cup containing the victim's left little finger. We disagree.

Generally, any relevant evidence is admissible. N.C.G.S. § 8C-1, Rule 402 (1988). On the other hand, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. N.C.G.S. § 8C-1, Rule 403 (1986). Nevertheless, relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it as evidence. See, e.g., State v. Williams, 17 N.C. App. 39, 43, 193 S.E.2d 452, 455 (1972), cert. denied, 282 N.C. 675, 194 S.E.2d 155 (1973) (victim's tattooed skin relevant to identity).

In this case, the victim's body was charred almost beyond recognition. In fact, a neighbor was only able to identify the victim's body by a scar on the neck. Hence, the identity of the body found was a proper issue for determination. In order to prove the identity of the victim, the State introduced the finger found at the crime scene and presented evidence that the fingerprint taken from it matched a fingerprint from the little finger of Guy Warren on file with the Kinston Police Department. We conclude that the trial court did not err by admitting the finger as evidence, because its probative value as to the issue of the identity of the victim was not substantially outweighed by any danger of unfair prejudice. This assignment of error is without merit.

[5] By his next assignment of error, the defendant contends the trial court erred by denying his motion to strike opinion testimony by the State's expert witness, SBI Agent Phillip Brinkley, that the burning of the victim's home was of incendiary origin. The defendant argues that the opinion testimony was entirely speculative and without basis. We disagree.

A witness qualified as an expert may give testimony in the form of an opinion if his or her specialized knowledge will assist the trier of fact. N.C.G.S. § 8C-1, Rule 702 (1988). The expert may base such an opinion on information not otherwise admissible, so long as it is the type of information reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. N.C.G.S. § 8C-1, Rule 703 (1988).

On direct examination, the expert described the findings of his investigation which revealed several things. The ends of the mobile home were heavily damaged yet still maintained some structural integrity. All of the center portion of the mobile home, however, was totally destroyed. A set of bed springs found in the remains of the center portion of the mobile home had been completely burned clean of bedding material leaving only the metal springs. The springs were only six inches from the body. A couch immediately adjacent to the springs was heavily damaged yet not totally consumed. On the ceiling over the bed, the metal part of the roof had been burned clean of soot, yet soot was present on the portion of the roof above the couch. Based on such facts, the expert concluded that the hottest and longest burning area in the mobile home had been the point at which the bed springs were located. Also, he could not find any apparent evidence of an accidental origin such as a short in the electrical wiring. The expert testified that based on those facts, he formed the opinion that the fire had an incendiary origin which would mean it was an intentionally set fire as opposed to one that was purely accidental or started without intent to burn the mobile home.

On cross-examination, the defendant inquired further into the basis of the expert's opinion that the fire had an incendiary origin. The expert testified that his opinion was based primarily on the elimination of any accidental source, explaining that he eliminated the suggestion of a cigarette ignition by what he had been told about the time frame of the fire. Because of the time frame associated with the fire, the expert believed that an open flame source was necessary to cause it to start and burn as quickly as it did. The expert admitted that he did not know the exact cause of the fire but stated that based on his findings, an open flame source was necessary to create a fire with the characteristics of the one which burned the victim's mobile home. Given such testimony, we conclude that there was a sufficient basis upon which the expert could base his opinion; therefore, his opinion testimony was not so speculative as to require striking it from the record. Accordingly, this assignment of error is without merit.

[6] The defendant next contends the trial court erred by ordering that he be taken into custody while his trial was in progress. The defendant contends the trial court's action constituted punishment and improperly obstructed his defense by limiting his access to his attorneys. We disagree.

On 18 July 1989, after the noon recess on the second day of trial, the trial court denied the State's motion to have the defendant taken into custody for improperly contacting and tampering with the State's witnesses. Instead, the trial court ordered the defendant not to have any direct or indirect contact with any of the State's witnesses. The trial court further informed the defendant that if he or anyone on his behalf violated this ...


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